It has often been thought that guardianships are to provide for minor children after the loss of their parents. However, guardianships were designed to encompass much more and should always be designated for yourself as well as your loved ones.
What is meant by Guardianship?
A guardianship is a legal proceeding in a district court in which a guardian exercises the legal rights of an incapacitated person. Guardians have the same powers, rights, and duties as a parent. There are two types of guardianships in Nevada. The first, guardian over an estate, pertains to the administration of assets on the incapacitated persons behalf. For example; the estate of an elderly person or the provisions of an estate willed to a minor. The second type of guardianship pertains to the well being of the incapacitated individual and is sometimes called a "guardian of a person." This means that the guardian may consent to medical treatment, educational training or other professional care for an incapacitated person or minor. The guardian of a person may also make living arrangements for the incapacitated person.
How is a person determined to be incapacitated?
Any adult may file a petition with the court to determine another person's incapacity, that sets forth the factual information upon which they base their belief that the person is incapacitated. The court will receive evidence to determine the person's capacity, such as statements from physicians regarding the persons mental or physical condition, or affidavits and testimony from family members. A guardian is usually appointed at the conclusion of the incapacity hearing.
Who may serve as Guardian?
Any adult resident of Nevada without a criminal record can serve as guardian. A close relative of the ward who does not live in the state can also serve as guardian. Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed, but generally a bank trust department will only act as guardian of the property.
The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of guardianship or at the hearing. A Guardian must be represented by an attorney who will serve as "attorney of record." Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. Any guardian who does not properly carry out his or her responsibilities may be removed by the court.
A guardian who is given authority over any property of the ward must inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions.
The guardian may exercise all rights that have been delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward.
A Word about Guardians for Minors
If a minor child receives an inheritance or proceeds of a lawsuit or insurance policy, the court must appoint a guardian. Both parents or a surviving parent may make and file with the clerk of the Court, a written declaration naming a guardian of the child's person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary.
In Conclusion
Guardianship, like many other situations, often arises in an emergency. If you have minor children, nominating guardians in your will is a necessity for your children as well as yourself.