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Considering Guardianship?

Ross E. Evans Associate Attorney

Guardianship is a legal process that appoints someone to make decisions for another person who is deemed unable to do so for themselves. This can be due to factors like age, disability, or mental illness. While Guardianship can serve as a crucial tool for those in need, it’s important to carefully consider whether it’s the right decision before proceeding. Here are some key factors to think about:

1. Understanding the Types of Guardianship:

  • Guardianship of the Person: A guardianship of the person involves decision-making authority over non-financial aspects of care, including healthcare decisions, housing, caregiving, and decisions involving a person’s daily living activities.
  • Guardianship of the Estate: A guardianship of the estate involves decision-making authority over a person’s finances and other assets.
  • Limited Guardianship: A limited guardianship is a unique type of guardianship in which limited decision-making authority is provided over specific areas and to assist with meeting a person’s specific needs without conferring full decision-making authority upon the guardian.

Identifying the specific needs of the individual will assist with determining the type of guardianship which may be necessary. The court will generally focus upon the measures which are considered to be the least restrictive upon an individual’s personal freedom and autonomy.

2. Assessing the Individual’s Capacity:

Guardianship generally begins with an individual’s physician assessing the person’s capacity for reasonable and informed decision making, as well as assessing an individual’s ability to perform activities of daily living. If an individual is found to lack capacity to understand and make decisions regarding their finances or healthcare, or with meeting their daily needs and activities, guardianship or an alternative to guardianship should be considered.

Anyone considering guardianship, should consider the following resources:

  • Independent evaluation: Seek professional assessments by doctors, psychologists, or social workers to determine the individual’s decision-making ability in different areas. A physician’s certificate of capacity which identifies areas of concern and a person’s ability to perform activities of daily living is required for filing a guardianship in Nevada. It is also crucial in determining whether guardianship is necessary in the first place, or whether an alternative to guardianship should be considered.
  • Consider age and disability: While age alone is not necessarily a factor, age-related infirmity, dementia or Alzheimer’s diagnosis may warrant further assessment for capacity and consideration of need for guardianship or an alternative to guardianship. Likewise, the diagnosis of a mental illness may necessitate an assessment of the person’s capacity to perform informed decision-making as well as to the individual’s ability to independently manage the same and their activities of daily living. Additionally, self-harm and/or susceptibility to physical or financial harm including risk of exploitation, or degree to which exploitation may have already taken place, are factors which the physician should consider in determining whether guardianship or an alternative to guardianship should be recommended.
  • Individual preferences: While assessing a person’s capacity and considering guardianship or an alternative to guardianship, at all times an individual’s wishes and preferences should be prioritized. However, due consideration should be given to assessing whether the individual has the capacity to state a preference and is not being subjected to external factors including undue influence. If a person is able to express a preference in how their needs should be met, and so long as risk of undue influence is low, it would be a good idea to consider an alternative to guardianship, including supported decision-making or enacting a power of attorney.

A thorough understanding of the individual’s strengths, limitations, and desires is crucial before deciding whether to seek a guardianship or alternative to guardianship.

3. Exploring Alternative Options:

As guardianship is typically treated as a last resort, it may not be necessary to seek a guardianship. In fact, before granting guardianships courts often explore whether there are any reasonable lesser-restrictive alternatives to guardianship available to meet the individual’s needs. For instance, if an individual is found to have capacity to execute a power of attorney, or if they have already done so, a court may be disinclined to grant guardianship where the individual’s needs may be met by the use of a power of attorney. Thus, individuals should explore the following alternatives to guardianship:

  • Supported decision-making: This empowers the individual to make choices with support from a trusted advisor. Individuals should consider having a family member present for medical appointments to assist with taking notes, asking questions regarding healthcare options, and providing advice. Individuals may also consider receiving assistance with overseeing financial management, and paying bills, or hiring a fiduciary to manage bank accounts and investments.
  • Power of attorney for finances: This allows someone to make specific decisions regarding financial management on the individual’s behalf without court involvement. A power of attorney for finances may be necessary to provide a trusted person with the ability to request and receive bank statements, receive, negotiate, and pay bills, and oversee and make investment choices.
  • Durable medical power of attorney: This enables someone to make healthcare decisions when the individual is incapacitated or otherwise unable to do so on their own.

Before seeking a guardianship, individuals should explore if less restrictive options can meet the person’s needs effectively, or whether such alternatives are not available given a person’s incapacity or if there are other external factors present for which the alternatives are unable to protect the person, including exploitation or undue influence.

4. Selecting an Agent under a Power of Attorney, or Guardian:

In considering guardianship or an alternative to guardianship, it is important to think about selecting someone who is both trustworthy and capable of providing the type of assistance that may be necessary.:

  • Consider values and compatibility: An individual should choose someone who shares their values, and is also someone with whom they are already able to effectively communicate with, especially about what may be considered difficult or private topics. It is important that when choosing either a guardian or an agent under a power of attorney, that an individual is confident that their preferences as to their healthcare, finances, and activities of daily living will be discussed and prioritized.
  • Assess mental acuity and emotional stability: An individual should attempt to assess that their choice for guardian or agent under a power of attorney has the necessary smarts and emotional stability to manage the responsibilities involved. An individual should steer clear of choosing a person whom has difficulty managing their own affairs, or someone who is disorganized or not able to calmly handle stressful situations.
  • Location and availability: An individual should consider the proximity and ability of a person to be readily available to meet their needs.
  • Financial stability: Both guardianship and providing financial or physical oversight via a power of attorney can be financially demanding upon the guardian or agent. Additionally, providing a person with authority under a guardianship or power of attorney, can open the individual to risk of financial exploitation by the person chosen. Therefore, it is important to assess the guardian’s financial resources in assessing trustworthiness.
  • Willingness and understanding: It is important to seek understanding and consent from any person whom is being considered to be designated as a potential guardian or agent under a power of attorney. Having such a discussion before designating a person in such manner helps to ensure that the individual’s preferences are understood and to determine if the chosen person understands the expectations and commitment which may be involved.

Choosing the right guardian is a weighty decision, so careful consideration is essential.

5. Legal Implications and Processes:

Whether to seek a guardianship or appoint someone an agent under a power of attorney involves significant legal questions and rights of the persons involved. Additionally, every state will have its own process for appointing a guardian, and the rights and limitations involved. Thus, it is important to consult an attorney if you are considering guardianship or an alternative.

  • Consult with an attorney: Understand the legal process and requirements for establishing guardianship, and to assess whether guardianship or an alternative to guardianship should be considered.
  • Court involvement: Guardianship typically requires court approval, involving filing legal pleadings, attending hearings, and satisfying strict reporting requirements. Alternatives to guardianship, such as establishing a power of attorney, do not require court involvement or oversight. However, a power of attorney may not be the perfect solution depending on an individual’s needs or capacity.
  • Legal fees and costs: There are legal fees and ongoing costs associated with guardianship, which may be substantial given the circumstances. In Nevada, for instance, any person who files for the appointment of a guardian is liable for their own attorneys’ fees and costs in seeking the guardianship, however, the Court may subsequently authorize such fees to be paid from the person’s estate. Additionally, ongoing oversight proceedings and reporting requirements will likely necessitate additional attorneys’ fees throughout the term of the guardianship.
  • Ongoing monitoring and reporting: Typically, in all guardianship cases, periodic reporting to the court is required at least annually, and in some cases more frequently. Additionally, guardianship cases are often public, and due consideration should be given to maintaining an individual’s privacy by considering alternatives to guardianship before a guardianship is requested.

It is important to seek legal guidance from a competent and experienced attorney to navigate the complexities of the legal processes involved in guardianship.

Guardianship is a serious decision with significant implications. Carefully considering all the factors mentioned above will help you make an informed choice that best serves the individual’s needs and respects their autonomy.