Guardianship Overview
A guardian of the person is responsible for most of the life decisions that must be made for the ward, including authorization or withholding of medical care, living arrangements and the like. The functions include supplying the ward with proper care, maintenance, support and education, and authorizing medical, surgical, dental, psychiatric or other treatment for the ward.
The guardian must seek Court permission for major decisions such as changing the state of residence of the ward or authorizing major medical treatment. The guardian cannot consent to experimental medical, biomedical or behavioral treatment, or to sterilization. The guiding principle governing the actions as guardian must always be the best interests of the ward.
Functions of Guardian of Estate
A guardian of the estate handles the financial affairs of a person deemed to be in need of protection. The functions are to protect, preserve, manage and dispose of the estate according to law for the best interest of the ward. The guardian must use the ward's estate for the proper care, maintenance, education and support of the ward or the support of a person the ward has a legal obligation to support.
Qualifications of Guardian
To be a guardian, you must be over the age of 18, and never judicially determined to have committed abuse, neglect, or exploitation. You must also be a resident of the State of Nevada, or you can be a co-guardian along with a Nevada resident.
Many of our clients are not Nevada residents. We have associations with professional guardians who will serve along with the out-of-state family member.
Our staff is very well trained in guardianships. Catherine Krasner is a legal assistant, and she is also a registered guardian. She can help answer questions you may have about guardianship.
Level of Capacity for Obtaining a Guardianship
The Court will appoint a guardian if the proposed ward is "incompetent" or of "limited capacity." "Incompetent" means "an adult person who, by reason of mental illness, mental deficiency, disease, weakness of mind or any other cause, is unable without assistance, properly to manage and take care of himself or his property, or both. The term includes a mentally incapacitated person." NRS 159.019.
"A person is of "limited capacity" if the person is able to make independently some but not all of the decisions necessary for the person's own care and the management of the person's property." NRS 159.022. The Court can also appoint a voluntary special guardian, when the person is of limited capacity and voluntarily petitions for a guardian.
Emergency or Temporary Guardianship
If it can be shown that an emergency exists, a temporary guardian can be appointed within days or hours. The emergency appointment must be limited to a relatively short time. The emergency appointment is often joined with a regular application for appointment of guardian, so that a permanent guardian is appointed before the temporary appointment expires.
Tax Treatment of Appointing Guardian
The costs of obtaining a guardianship are sometimes deductible as a medical expense. To qualify for the deduction, the appointment must be preconditioned for admission to a medical or care facility and the charges of the facility itself must be deductible as a medical expense. Assuming this test is met, the taxpayer may deduct the attorney's fees and costs associated with the guardianship appointment, to the extent they exceed 7½% of the taxpayer's adjusted gross income.
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For more information or to schedule an appointment with an experienced elder law lawyer, please contact us.
