Articles written by attorneys for attorneys and published in the “Guardianship Matters” issue of the printed journal, Communiqué (August 2016):
- “Status of Guardianship Rules in the Eighth Judicial District Court” By Dara J. Goldsmith, Esq.
- “Guardianship Compliance” By Guardianship Compliance Administrator Riley Wilson
- “Representing Adults Facing and Under Guardianship Proceedings” By Adam Woodrum, Esq. and Homa Woodrum, Esq.
- “Common Delinquency Issues Encountered When Providing Pro-Bono Representation of Guardians or Representing Former Pro-per Guardians” By Ross E. Evans, Esq.
- “Providing Legal Representation to Adults Under Guardianship” By Christine Miller, Esq.
- “When do you need to seek Guardianship?” By Laura A. Deeter, Esq.
- “Can Guardianship Prevent Elder Abuse in Marriage?” By Erin Houston, Esq.
The following articles can be read in the full issue (print or PDF versions) of the publication:
- “Commission to Study the Administration of Guardianships in Nevada’s Courts” By Michael S. Sommermeyer
- “Administration of Guardianship Matters in Clark County” By Judge Cynthia Dianne Steel
- “Guardianship: All branches of government need to be all-in” By Chief Judge David Barker
- “Guardianship Case Summaries – Minor and Adult Guardianships at the Nevada Supreme Court Level” By Homa S. Woodrum, Esq.
To get the full issue, you can download the PDF file by clicking on the cover image above.
© 2016 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 2016). >All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
Status of Guardianship Rules in the Eighth Judicial District Court
By Dara J. Goldsmith, Esq.
Title 13 of the Nevada Revised Statutes, specifically, Chapter 159 sets forth the state laws associated with guardianship for both minors and adults. A person who is placed under guardianship is known as a ward, and person who is ordered to act in the ward’s interest in managing the ward’s affairs is the guardian. In the Eighth Judicial District Court, guardianship cases are heard by the Honorable Judge Dianne Steel. In the event of conflict, or peremptory challenge, Judge Stefany A. Miley, Judge Nancy L. Allf and Judge Gloria J. Sturman serve as the alternate guardianship judges.
Until the summer of 2015, the Eighth Judicial District Court operated with a hearing master, whereby the hearing master would hear matters and the commissioner would issue Reports and Recommendations in accordance with NRCP Rule 53(e) for contested matters and orders would be issued by the court in non-contested matters. As such, the Local Rules applicable to guardianships were drafted in accordance with the hearing master hearing motions and evidentiary hearings associated with disputed questions of fact. These rules are found at EDCR 5.92 & 5.93 and are now wholly outdated.
In accordance with the Nevada Supreme Court decision in In re A.B., 128 Nev. Adv. Op. 70, where a master system is established, the district court judge cannot enter orders absent having a Report and Recommendation from the commissioner to adjudicate. In fact this is how the Guardianship Court operated for at least the past 15 years. In the summer of 2015, Judge Steel sought out volunteers to assist in drafting updated rules and forms to assist attorney’s and pro se litigants negotiate the guardianship maze where the cases are directly heard by the district court judge. At the present time the rules committee is finalizing its proposal for Judge Steel and thereafter the district court judges to consider later this year.
This is not a fast process. Once the district court review and approve the rules, the rules need to be presented to the Nevada Supreme Court for consideration and approval in the form of an Administrative Docket (ADKT). So at the present time, the guardianship cases are not subject to local rules in the Eighth Judicial District Court. That is not to say that best practices do not need to be filed, just that if you are looking to the Rules to provide you guidance in your practice in the guardianship arena, the present rules are wholly inapplicable.
At the present time the Family Court Self-Help Center, both in the physical building and online, has updated most of its forms and these forms provide an excellent basis for negotiating the standards that are being imposed at this time.
Since this area of the law is evolving as a result of these changes here are my top five tips for guardianship court:
- Despite the provisions of Chapter 159, plan on bringing the guardian and ward to court for each hearing. If attendance is not possible be prepared to advise the court on the record why attendance is not possible. If you put it in writing and file it or provide a doctor’s letter all the better;
- Guardianship court is no longer just on Wednesdays at 9:00 and 10:00 a.m. In fact you can no longer set your hearing dates and times. You can request certain parameters in the comments when e filing to address dates you are not available, i.e., never on Wednesdays before 10:30 a.m. or not before September 6th, etc;
- Judge Steel is now swearing in guardian’s and issuing letters in court. This is saving a lot of time and prevents the guardian from not getting his or her letters issued;
- Guardians must file written reports/accountings on an annual basis with the court. The time starts running when the guardian is appointed, not from when an inventory is filed 60 days later; and
- When terminating a guardianship as a result of death of the ward or otherwise a citation must be issued by the court rather than using a notice. This revelation was news to many long practicing guardianship attorneys.
However, the best tip I have to anyone wanting or needing to appear in guardianship court, come to the monthly bench bar meeting. These meetings are usually held on the last Monday of the month. Join us for a brown bag lunch meeting. It is free. CLEs are offered. What more could you want? The location is not always the same, so be sure to contact Judge Steel’s judicial executive assistant Angie and get added to the invite list. I hope to see you there.
By Guardianship Compliance Administrator Riley Wilson
Each day the Eighth Judicial District Court generates a compliance report for adult guardianship cases. The court developed this report over the last year to allow a quick daily review of the guardianship caseload statistics. The report lists certain compliance documents that are filed each day. This report serves as a great starting point for internal discussions and your phone calls.
The report uses the codes from the documents filed in the case and the case’s anniversary date to determine the case’s compliance with NRS Chapter 159. The court has painstakingly reviewed each case to insure the report is accurate. The report’s accuracy going forward is dependent on everyone using the correct codes when filing documents with the court. For example, an accounting (ACCT) will not be recognized as an accounting if it is coded as a petition (PET). The accounting will be listed as a petition on the report and the case may be deemed noncompliant. Entering the proper coding will save you time in the long run. Helping your clients maintain compliance will assure their continued authority to act.
The court currently tracks documents that are required to be filed pursuant to statute. The three documents that need the most attention are the Inventory and Record of Value, the Accounting, and the Report of Guardian. A staff member reviews each of these documents daily. A few of the many items that need to be considered for each document type are listed below.
Inventory Appraisal and Record of Value
NRS 159.085, 159.076
Every guardian of the estate is required to file an inventory within 60 days of being appointed guardian. The inventory should be supplemented as needed.
Questions for consideration include:
- Is the math correct?
- Is the form signed and notarized?
- Is an appraiser needed?
- If so, was one used and is the oath of appraiser filled out?
- Does the net value of the estate exceed $10,000?
- Is there anything that looks out of place in relation to the rest of the file?
NRS 159.176 etc.
A guardian of the estate must file an annual accounting of financial recourses. The window to comply with the statutory filing requirements starts at the anniversary date and goes 60 days. Additional situations requiring accountings are found in the statute.
Questions for consideration include:
- Is the math correct throughout the document?
- Is there a recapitulation page?
- Does the recapitulation page accurately reflect the various schedules?
- Does the beginning balance match the ending balance of the prior accounting or inventory?
- Does the accounting appear on its surface to accurately reflect the underlying transactions?
- Is there anything that looks out of place in relation to the rest of the file?
Report of Guardian
A guardian of the person must file a written report each year. This should include an update on the condition of the ward, and a description of how the guardian exercised his or her authority and performed his or her duties over the past year. Additional reports may be required under certain circumstances. The window to file a report of guardian starts at the anniversary date and goes for 60 days.
Items for consideration include:
- The ward’s overall wellbeing.
- Does the ward or guardian’s contact information need to be updated?
- Does the ward continue to need a guardian?
- Is there anything the guardian would like the court to know?
- Is there anything that appears to be out of place or alarming, such as allegations of abuse or neglect?
It is interesting to note that many forms used by attorneys appear to be out of date or incomplete. The Family Law Self-Help Center has forms for the use of the Pro Per clients. They can also be used as a template for practitioners. These forms are continually reviewed and modified to insure that they conform to NRS Chapter 159. Guardianship practitioners should review their forms against the Family Law Self-Help Center’s forms to see if any updates are needed.
Representing Adults Facing and Under Guardianship Proceedings
By Adam Woodrum, Esq. and Homa Woodrum, Esq.
“Gideon’s Trumpet” by Anthony Lewis chronicles the background of Gideon v. Wainright–a seminal US Supreme Court case that cleared the way for representation of criminal defendants even if they could not afford counsel. In Nevada there has been talk of a “civil Gideon” for Guardianship matters. Generally, this would include representation where basic human needs are at stake in the civil law context. In Nevada Guardianships, the implication reaches beyond the concept of representation where funds are uncertain to pay for counsel (as in criminal representation of indigent clients). Ethical considerations associated with the fundamentals in attorney client relationships complicate matters where clients have varying levels of capacity.
Approaching Representation in Guardianship
Two different stages in guardianship representation to distinguish include representation when the need for guardianship is being determined (and/or disputed) and representation where a person is already under guardianship and is seeking accommodation, or even termination, of their case.
How exactly an attorney should approach representation of an incapacitated person, either already under guardianship or facing guardianship, is something Nevada courts and attorneys are still feeling out. The usual attorney-client relationship is client driven. In most civil litigation, when an attorney knows a client lacks or may lack the capacity to make decisions it would be appropriate to seek a substitute decision maker such as a guardian ad litem. Appropriate instances for a GAL might include approval of a settlement agreement. See NRS 12.050.
However, guardianship proceedings create a substitute decision maker. There is no easy way to address an attorney’s role representing individuals facing guardianship though there is sufficient grey area in which to operate. For example, our office has represented persons subject to guardianship at every major stage including prior to establishment, seeking termination of a specific guardian, seeking termination of guardianship altogether, and making objection to the actions of guardians on behalf of individuals under guardianship.
Often a disease process which lands an individual in the guardianship court is in a stage of transition and progression such that the person subject to guardianship can still make his or her wishes known, even if he or she may not be able to put those wishes into place and protect themselves from harm. That is a very clear place for an attorney to operate, simply representing a client’s position in court to the best of one’s ability, and attempting to achieve as much freedom of decision as possible.
There are also clear cases on the other side of the spectrum, when an incapacitated individual or candidate for guardianship is clearly and severely incapacitated and representation during the establishment of guardianship simply means safeguarding procedural rights including proper service of papers and ensuring proper annual requirements such as accountings or reports outlined by law. There are interim filings that may be neglected without a watchful eye, such as requesting permission before abandoning a potential claim of the estate.
Most people facing guardianship who request and are appointed counsel fall in the middle. We have a client now who is entirely mobile and was living independently in downtown Las Vegas until a fall landed him in the hospital, and guardianship proceedings were initiated by a private guardian. It is obvious that he is not entirely happy losing his independence, but he is safe and content and most importantly, cannot or will not say one way or the other what he wants to do. In this grey area we’ve asked him if he wishes us to do something for him, but his encroaching cognitive deficits are interfering with his complete understanding of what’s happening. In that case, several visits are made to establish rapport and ensure avenues of discussion are exhausted. In court, a continuing record is made of communication efforts and general goals of safeguarding assets and the least restrictive approach to guardianship.
Finally, our office also represents guardians and we often face questions from attorneys for adults facing or under guardianship. While we always recommend that the guardians we represent make reasonable accommodation for specific requests, it is not always possible or practicable day to day. As guardianship practice heads toward the “least restrictive environment” the accommodations for specific wishes will grow. The only true remedy for dissatisfaction with a specific guardian or a guardianship is a petition to remove or a petition to terminate. If an attorney providing representation of the adult in question believes his or her client is not in need of a guardianship then it should be brought to the attention of the court (hopefully with a new medical evaluation stating guardianship is no longer needed or should be limited).
Ethical Considerations for Representation of Incapacitated Clients
The Nevada Rules of Professional Conduct (NRPC) place value in the attorney client relationship as a client driven mechanism. Rule 1.14 specifically addresses the situation where a client has diminished capacity by encouraging a “normal client-lawyer relationship” but in NRPC 1.14(b) guardianship, conservatorship, or a guardian ad litem are considered where a client may no longer be able to avoid financial, personal, or other harm.
The American Bar Association has provided, in Ethics Opinion 96-404, that “A lawyer who reasonably determines that his client has become incompetent to handle his own affairs may take protective action on behalf of the client, including petitioning for the appointment of a guardian.” The opinion gives a nod to the inherent conflict of substituted decision making in guardianship, including the fact that a guardian would have their own counsel to then handle the legal matters for the incapacitated client.
In NRS Chapter 159, the main legislation related to guardianship, a person who may become subject to a guardianship is to be advised that they have a right to counsel, but the statutory language seems to focus only on the establishment phase of guardianship. See NRS 159.0485) The court can appoint counsel as the statute is currently postured, but the request of the allegedly incompetent individual is a main trigger in practice. Further, NRS 159.0485(3) currently implies that an attorney may be deemed to have been “unnecessarily or unreasonably” appointed, which would could not be the case if a future mandate for counsel in guardianship is achieved.
A Guardian Ad Litem and Counsel for a Person Facing Guardianship Have Very Different Roles
Attorneys have ethical obligations to represent clients who have the capacity to direct counsel and form the attorney-client relationship, and to continue representation to client benefit and best interests. This applies even to the point of recommending substituted decision making and even revealing confidences where necessary to protect a client from substantial imminent harm.
Clients who find themselves impaired through a disease process, such as Alzheimer’s Disease, could express to counsel that they do not want a guardian because they believe themselves to be competent. Even where there was medical evidence to the contrary, an attorney appointed to represent that client would be bound to communicate their client’s wishes to the court. An attorney guardian ad litem, on the other hand, would be able to push for outcomes that matched a client’s best interests even where they conflict with the client’s stated wishes., However, a guardian ad litem is not an attorney by default, and is not what is contemplated by a client driven “civil Gideon.”
A Path to Ethical Representation of Persons Facing and Under Guardianship
Guardianship is a considerable deprivation of personal autonomy and rights–a guardian’s court supervised decision making becomes substituted for the choices a person not under guardianship would be freely allowed to make. There remains room in the dynamic for a person under guardianship to be represented by counsel of their own to protect due process rights unique to their interests.
Put another way, a guardian owes substantial fiduciary duties to the ward, and by virtue of the job description would be conflicted out of service where they could in theory make decisions that benefit themselves first. A guardian could bill a fee for a visit with their charge, but a person lacking capacity may not be able to challenge whether such a meeting ever took place. Absent objection, a fee for a visit would pass muster before the court to the detriment of a guardianship estate. Or a guardian could conserve estate assets by moving someone into a care facility owing to the lower costs versus full time home care. Where that guardian could inherit the estate in question, it serves their interests to conserve assets versus allowing them to be exhausted for the benefit of their charge.
The Americans With Disabilities Act (“ADA”) specifically includes findings by the United States Congress that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals”. 42 U. S. C. §§ 12101(a)(7). A disability is an impairment, physical or mental, which substantially limits a major life activity. 42 U.S.C. § 12102. What many do not realize, however, is that the ADA’s protections apply where there is a record of such an impairment (accurate or otherwise) or also where the affected individual is regarded as having such an impairment. Id. If a person is facing guardianship, they are very likely entitled to accommodation even if they are disputing the very reason they are in guardianship court.
It stands to reason that some, if not all, individuals who find themselves in guardianship proceedings could also be considered disabled for purposes of the ADA. Accommodation of their disability should include advocacy for their wishes and procedural (notice, scrutiny, etc.) safeguards for their benefit. If they have vision or hearing problems, presuming that they do not object to a pleading or a statement in a court hearing because they voice no objection is absolutely an abrogation of their rights without the assistance of counsel. If a guardian’s course of action cannot stand up to the scrutiny of counsel for the respondent in guardianship, perhaps it is not as appropriate or clear as the guardian would have the court believe. In that way, even provision of representation is a positive step toward ADA compliance.
The elephant in the room is that adding attorneys for representation increases costs for any type of litigation or proceeding. That said, the value added to the case where all persons facing or under guardianship are afforded either appointed or retained counsel is undeniable. Attorneys serving in that capacity would necessarily be cognizant of costs to their client and could force expenses of time and resources down by ensuring estates are not depleted without objection. Knowing an attorney is watching their conduct, a guardian would also be more judicious and cautious as well.
What is certain is that the role of counsel for an adult under guardianship should be served by a licensed attorney. The legal, equitable, and social considerations at play need to be weighed through all client interaction and representation. Further, the fiduciary framework under which attorneys operate is readily adapted to protecting any client category brought into the fold. With the expanding quantity and complexity of rights being legislated, including the implementation of a Guardianship Bill of Rights, the importance of representation of persons facing guardianship will only increase.
Common Delinquency Issues Encountered When Providing Pro-Bono Representation of Guardians or Representing Former Pro-per Guardians
By Ross E. Evans, Esq.
The Legal Aid Center of Southern Nevada has put together a helpful self-help website http://www.familylawselfhelpcenter.org, for individuals wishing to proceed without representation by counsel. The Family Law Self-Help Center website has a wealth of information, including an ample overview of the guardianship process, and the necessary forms and instructions that deal with the most common guardianship issues, including the process for initiating the guardianship proceeding and having a guardian appointed. However, while the information presented by the self-help website is certainly sufficient for pro-per guardians to become and stay current with their post-appointment reporting requirements, once appointed, many pro-per guardians may fail to take the next steps after their appointment or may otherwise fail to keep up with annual reporting and accounting requirements. Additionally, many guardians who were once represented by attorneys to establish the guardianship have not maintained counsel to assist with and facilitate the guardian’s filing of required annual reports and accountings.
In fact, as recently as April 2016, an internal review of the Clark County’s guardianship caseload showed that 22 percent of guardians with cases registered in Clark County had not filed requisite annual accountings, and in 25% of current cases guardians had not filed the initial inventory of assets or a petition seeking the court’s approval of a budget. See Colton Lochhead, “Few Clark County guardianship cases are in compliance with Nevada laws,” Las Vegas Review-Journal (April 1, 2016), available at http://www.reviewjournal.com/news/las-vegas/few-clark-county-guardianship-cases-are-compliance-nevada-laws.
In connection with the Nevada Supreme Court Guardianship Commission. headed by Justice James W. Hardesty, the Clark County Guardianship Court has been tasked with clearing, and dealing with, the backlog of non-compliant guardianship matters. As a result, the guardianship court has been reviewing its docket for matters in which the annual filing requirements are not current, and has been issuing citations and orders to show cause to guardians indicating specifically for which filings the guardians are in arrears. Practitioners can expect to see a greater volume of formerly pro-per guardians who have been issued a citation and order to show cause as the court works through its back log of tardy cases.
Understanding what is required by the guardian
First and foremost, and especially with respect to guardians over the estate (the assets) of an individual, the client-guardian must understand that with respect to the ward, the guardian is their fiduciary. See NRS 162.020(1)(b). Any consultation with a prospective client-guardian should begin with at least a simple overview of the fact that the guardian is the ward’s fiduciary, and a general discussion of fiduciary concepts.
Next, the attorney should ascertain the degree to which the guardian is non-compliant with filing requirements. Likely, the guardian’s missed filings will be specifically set forth in the order to show xause issued by the court. However, the attorney should not assume that only those items noted in the order to show cause are the only deficiencies, and a review of the docket to determine whether any additional documents should be filed is recommended.
The following items are required to be filed immediately or shortly after the initial appointment of the guardian:
- Order Appointing Guardian, which may be signed by the Judge and filed in open court at the hearing on a petition for appointment of guardian.
- Notice of Entry of Order Appointing Guardian, which must be served on ward within 5 days per NRS 159.074(1).
- Letters of Guardianship, which must be filed immediately, and recorded in any county in which the ward’s real property is located within 60 days per NRS 159.087.
- Guardian’s Acknowledgment of Duties, See NRS 159.073(1)(c).
- Inventory of Guardianship Assets, which are due within 60 days after appointment per NRS 159.085.
- Monthly Budget and Petition to Approve Monthly Budget which are due within 60 days after appointment, and associated Order Approving Monthly Budget.
Complete forms for each of such filings, along with helpful instructions, may readily be obtained from the Family Law Self-Help Center website under the guardianship heading at http://www.familylawselfhelpcenter.org/self-help/guardianship/.
In addition, the guardian is required to file each of the following documents annually:
- Annual Report of Guardian. If guardianship is over the person, a written report on the condition of the ward and performance of guardianship duties by the guardian is due annually not later than 60 days after the anniversary date of the appointment of the guardian per NRS 159.081.
- Annual Accounting. If guardianship is over the estate, an accounting of the guardianship estate assets, income, and expenses for the prior year per NRS 159.176 to 159.184.
Delinquent annual reports typically can be filled out by the guardian with little input or oversight by counsel. However, guardians may need and request assistance by counsel in representing the guardian before the court at the order to show cause hearing for delinquent filings. Generally, such hearings consist of appearing and informing the court that either the guardian has since complied with the order to show cause or by ascertaining what additional time is needed for the guardian to become compliant.
As one of the more difficult tasks faced by an attorney representing a previously pro-per guardian will be preparing missed or delinquent annual guardianship accountings, the attorney should first determine whether annual accountings are even required. The guardianship may qualify for summary administration, in which annual accountings are waived where the ward owns less than $10,000 in total assets. This is commonly the case for minor wards or whene the estate is held in trust. If the guardianship qualifies for summary administration, significant time and cost can be saved by converting the guardianship to summary administration. A form for that may be found on the Family Law Self-Help Center website. Conversely, the attorney should ascertain if a summary administration must now be converted to general administration if the assets have exceeded $10,000 in value when summary administration was previously ordered. If so, the attorney should advise the prospective client, although it may not have been specifically cited by the court in the order to show cause, that an amended inventory must be filed noting the change in value and that annual accountings are now due. See NRS 159.076(4).
If the guardianship does not qualify for summary administration and the guardian is delinquent in accounting over a single or multi-year period, the attorney should discuss with the prospective client guardian the scope of work and review to be performed by the attorney. At very least, the attorney should assist and facilitate the client by providing the correct forms to the client, assist the client with filling out the accounting forms and any special-case deviations, and answer any questions the client may have.
Counsel representing guardians should be mindful of the backlog of non-compliant guardianship cases and the strain on the Clark County family court in ensuring annual and basic reporting compliance. Accordingly, counsel should determine at the outset of prospective guardianship matters whether the attorney will be retained for preparing and satisfying annual reporting requirements. If so, attorneys for guardians should make sure that annual reporting and accounting tasks are calendared at the anniversary date of the order appointing the guardian to allow sufficient time for the client or the attorney to prepare the requisite forms. Additionally, attorneys should instruct their guardian clients to review NRS Chapter 159.078 through 159.156, which sets forth the duties of a guardian of the person and estate and contains relevant provisions with which the guardian should generally be mindful.
Providing Legal Representation to Adults Under Guardianship
By Christine Miller, Esq.
According to the U.S. Department of Health and Human Services Administration on Aging, within the next 25 years, the population of those 65 years and older is projected to reach more than 82 million people. See www.aoa.acl.gov/Aging_Statistics/Profile/2015. As our community sees a profound growth in its senior citizen population over the next two decades, we expect our senior population to face myriad legal issues, including guardianship issues. This article addresses the challenges of representing a client who is facing a guardianship over their person and/or estate, regardless of whether the client is 18 or 88 years old.
Right to legal counsel
According to NRS 159.0485, at the first hearing for appointment of a guardian, the court shall advise the proposed adult ward of their right to legal counsel. This right to counsel remains available to a person throughout the pendency of the case. Reasonable attorney fees and costs are provided for in NRS 159.0485(3), subject to the court’s discretion and approval. One remains counsel for the adult ward or proposed ward until relieved of their duties by order of the court.
Now that we’ve identified the statutory right to counsel for adult wards, let’s focus on why counsel is so important.
Giving adult wards a voice in court (names changed for privacy)
Arwen is in her 70s. When her husband died, she became emotionally distraught and was hospitalized for a brief period of time. Two of Arwen’s grown children thought their mom needed a guardian and they began to fight over that position. The court appointed a lawyer for Arwen and the lawyer learned that Arwen did not need or want a guardian. Arwen’s attorney advocated this position and the case was dismissed.
Theo was a vibrant man who worked hard and saved his money. He even saved enough to purchase a couple of investment properties. Theo suffered a stroke in his 50s which completely changed his life. He could no longer work, he could no longer speak, and he became confined to his home. Theo needed someone to care for him, manage his bills, oversee his investments, and make his medical decisions. A close family member was appointed guardian, but over time Theo became very unhappy. He desired a new guardian and desperately wanted to move out of state to be cared for by another family member. Unfortunately, Theo was unable to go to court to voice his concerns and his guardian was not in agreement with his plan. Once a lawyer was appointed for Theo, that all changed. The lawyer advocated for Theo’s desires and ultimately the court agreed that those changes could be made. Theo’s wishes were made a reality.
These stories are important real life illustrations that show how an attorney can have a major impact in these cases. Equally important, the attorney ensures that the ward’s voice is presented to the court and that their legal interests and due process rights are protected. If Arwen had not been appointed an attorney, she may have ended up under a guardianship when she did not need one. She would have suffered through the strife and animosity of her adult children fighting over who would get control over her, possibly even expending funds from Arwen’s estate in doing so. And Theo might still be languishing in a home where he did not desire to live. No one should have to live their life under such circumstances, certainly not when such circumstances can be changed or prevented from the outset.
Representing a client who lacks capacity
In the stories above, both Arwen and Theo were able to give their attorney guidance by expressing their desires. But what do you do if you find yourself representing an adult under guardianship who suffers from a traumatic brain injury or Alzheimer’s, for example? Rule 1.14(a) of the American Bar Association’s Model Rules of Professional Conduct sets forth guidelines for representing a client with diminished capacity. Under this rule, the lawyer “shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” This approach is client directed to the extent possible.
So, what happens when the client is unable to direct the attorney? An extensive article published in the Washington Law Review (Vol. 91, No.2, 2016) by Nina A. Kohn and Catheryn Koss addresses this ethical dilemma. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2788912.
Court opinions on this subject are not uniform, yet a prudent course would require the attorney advocate for their client’s legal interests. In the context of a guardianship case, this means ensuring the guardian is not wasting client funds and ensuring the guardian is following the requirements of NRS Chapter 159, including ensuring the guardian is competent and meeting the needs of the ward, to cite a few examples.
Protecting your client’s assets
There are two types of financial documents required to be filed with the court. An inventory is meant to provide a picture of your client’s assets. See NRS 159.085. The inventory must be filed no later than 60 days after the appointment of the guardian. NRS 159.085(3) provides a list of what the inventory must contain: all of the ward’s estate that has come into the possession of the guardian all of the money that belongs to the ward and all of the just claims of the ward against the guardian.
The guardian is also required to file an annual accounting, unless the estate is valued at under $10,000. See also NRS 159.076, providing requirements for summary administration. Accountings are required to be filed annually unless otherwise ordered by the court. See NRS 159.177. The accounting must include the time period covered; all receipts and disbursements made during that time period; any claims filed and action taken regarding the accounting; any changes to the ward’s estate which have caused the estate holdings to change since the inventory or last accounting; and any other information necessary to show the condition of the ward’s affairs. See NRS 159.179(1). Further, the guardian must retain all receipts and vouchers for the various expenditures made. There is, however, no requirement to file those documents unless ordered by the court or an interested person. See NRS 159.179(3). Since the inventory and accountings provide a picture of the condition of the ward’s assets, the attorney should undertake a thorough review of the documents and determine whether more information is required from the guardian to explain the expenditures, and should consider filing objection if there are any irregularities.
Trust jurisdiction in guardianship cases
Interestingly, NRS Chapter 159 does not specifically indicate that the court has jurisdiction over a trust that involves an adult ward who is also the beneficiary of that trust. As such, a guardian of the estate may seek an order from the court submitting a revocable trust to the court’s jurisdiction under certain circumstances. See NRS 159.113(1)(l).
This section however, does not necessarily pertain to special needs trusts or irrevocable trusts that have already been established. One may ask why should trust assets be disclosed in a guardianship case when the settlor(s) of the trust went through the effort to delineate their financial arrangements in a trust instrument? The answer is to ensure the trust assets inure to the benefit of the ward-beneficiary. For example, if the ward is the beneficiary of a trust with provisions for payment of health care not otherwise covered by another source, the ward should be able to access their funds when an appropriate need arises. If the ward’s attorney or the court is not aware of the availability and amount of trust assets, then the ward may not be receiving that benefit. Clearly, it is important for the court to take jurisdiction over a trust, particularly in instances of fraud or when the ward is not receiving a benefit to which they should otherwise receive.
The Commission to Study the Administration of Guardianships in Nevada’s Courts is currently considering many rule and policy changes in this area. Legislative changes are also needed to protect those under guardianship from unscrupulous guardians and to ensure that the ward receives a clear and accurate picture of how their funds are expended. These issues are on tap to be heard during the 2017 legislative session.
In short, the appointment of a guardian results in one or more persons being given powers and duties over another person whether on a general, limited, or temporary basis. The ward is entitled to have their due process rights protected. Thus, it is crucial that persons facing or under a guardianship have legal representation to ensure that their rights are protected and that their voice is heard in court.
When do you need to seek Guardianship?
By Laura A. Deeter, Esq.
Whether faced with an aging parent or grandparent who is becoming forgetful or a client who is having difficulty remembering things or paying their bills, the questions of “do they need a guardian?” and “what do I do?” may arise. These concerns are becoming more prevalent given the aging of the baby boomer generation and the debilitating nature of dementia and Alzheimer’s disease.
In Nevada, there are guardianships of the person, guardianships of the estate, and special guardianships. A guardian of the person has responsibilities that are analogous to those of a parent for a minor child. The guardian is responsible for making sure the person under guardianship, or the ward, is cared for, is taking medications as prescribed, is obtaining medical treatment, and has all of the necessities of life. A guardian of the estate is in charge of assets; making sure the ward’s income is managed and bills are paid, and that there is an appropriate budget, among other duties. There are also strict reporting and compliance obligations with both types of guardianship.
Special guardianships are unique cases where a person may not be in need of a full guardianship, but requires assistance in a very specific area. For example, a special guardianship may be used to create a special needs trust or division of assets to qualify for Medicaid. These types of cases are typically only open for a short time and are used to achieve a specific purpose.
When concerns arise that suggest the need for a guardianship, a referral to a medical professional is often the first step, along with regular follow up care. To even consider guardianship, a doctor will need to complete a Certificate of Incapacity stating whether the ward is capable of managing their own affairs; if they need a guardian of the person, estate, or both; and whether they are at risk for substantial and immediate abuse, exploitation, or neglect. Referrals can also be made to Elder Protective Services, which will anonymously investigate concerns.
An estate plan can avoid the need for guardianship, but it has to be executed while the testator has the capacity to do so. All too often a friend or family member will bring in a loved one requesting a trust or power of attorney to make sure they can assist with their loved one’s affairs, but, depending on the diagnosis, a person may already lack capacity to execute those documents. A carefully drafted estate plan, done prior to a cognitive decline, can avoid the need for court intervention, but cannot guarantee you will be able to stay out of guardianship court. The unfortunate reality is that the most egregious cases of elder abuse or neglect are often at the hands of friends, family members, and trusted care providers. In those situations, guardianship court is often the appropriate place to pursue damages for defalcation of assets and financial harm to the ward, as well as who will care for the ward.
An estate plan also works to make a person’s wishes known in the event that court intervention is necessary. A guardian of the person can be nominated through a durable power of attorney for health care and a guardian of the estate can be nominated through a financial power of attorney. Again, it is very important to have these documents in place before any question regarding incapacity, as fighting over who should be guardian often results in these documents being challenged if they were executed during a time that competency issues started to arise.
If you start to notice that your friend or loved one is forgetting important tasks or dates, getting lost, not paying bills, or even losing weight because they forgot to eat, make the referral to a doctor or Elder Protective Services before it’s too late, and consult with an experienced guardianship attorney to determine if it is necessary to file for guardianship.
Can Guardianship Prevent Elder Abuse in Marriage?
By Erin Houston, Esq.
Guardianship is a legal mechanism by which one or more individuals are given legal authority to make decisions on behalf of another individual. This is defined by the Nevada legislature as having the care, custody, and control over another person.
One of the main objectives in obtaining a guardianship over an adult ward is to prevent financial exploitation of someone with diminished mental capacity. The elderly are particularly vulnerable to financial exploitation. To thwart this, the Nevada legislature has passed strict laws that allow for double damages where elder abuse can be proven. NRS 41.1395. Furthermore, there are laws in place that render void gifts to non-relative caregivers. NRS 155.097.
However, there are no legal means by which to prevent a person of diminished capacity from marrying someone with inappropriate intentions. Marriage can be a troubling mechanism for elder abuse. Marriage establishes explicit intestacy rights over the victim’s estate. The assumptions favoring the institution of marriage also grant one spouse with presumptive legal control over the other spouse in a healthcare setting, absent a clear power of attorney or guardianship stating otherwise. The possibility for financial exploitation in such a situation is obvious.
It is not difficult to obtain a marriage license in the state of Nevada. There is no waiting period. The only requirement is that both participants state via affidavit on the marriage license that they are not related within a second degree of consanguinity and that they are both over the age of 18.
While a marriage is easy to obtain, they are much harder to undo. A marriage for an elderly person with diminished capacity can later be annulled under the auspices of NRS 125.330, which allows for “want of understanding” as cause for a “voidable” marriage. However, what if the person who lacks capacity cannot understand that they are being taken advantage of and thus unable to seek an annulment? It stands to reason that a person under guardianship by definition lacks capacity or has a “want of understanding” to enter into a marriage. The issue is to what extent can the guardian prevent or terminate a marriage of a ward?
The guardianship statutes neither state explicitly whether a guardian has the authority to prevent the ward from marrying nor state that a ward cannot marry. In fact, the statutes state that the guardian must find the “least restrictive” living situation for the ward. The statutes also very generally state that the guardian of the person has the authority to maintain the “care, custody, and control” of the person of the ward. NRS 159.079. It follows that the guardian would have standing to petition to annul a marriage of a ward if the spouse very clearly entered into the marriage with the intention of establishing control over the ward’s finances while they are alive or after their death.
However, it is more difficult for an interested person to terminate a marriage over the ward if the person is already married to the abuser. Often, a relative of a person of diminished capacity does not realize that the proposed ward intends to marry until it is too late. At that point, it is much more difficult (and costly) to annul the marriage because a guardianship must be established first. To complicate matters, the guardianship statutes give preference to both spouses and relatives as proposed guardians. A concerned relative must file a petition to establish guardianship and then has the burden of proof to establish that the proposed ward not only lacks capacity, but will likely have to defend against the presumptive opposition to petition for guardianship from the abusing spouse.
This form of litigation is costly as it will require the moving party to conduct discovery to obtain bank statements, estate planning documents, and other financial information in order to prove that financial exploitation has taken place. However burdensome, this is the only means by which a concerned family member or friend can undo an exploitative relationship for a loved one.
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