Are You Sure You Need That Guardianship? Guardianship versus Power of Attorney

Before proceeding with a Petition for Guardianship, please be aware of some differences between Guardianship and Powers of Attorney. Many people believe that Guardianships over the Person and Financial Estate of a Proposed Protected Person are necessary to manage the affairs of a loved one needing help with medical and financial matters. But—if your loved one already has or wants a Power of Attorney, there may be no need for a Guardianship.

Powers of Attorney are executed when a person has the capacity to decide what is best for him or her. The Power of Attorney is durable, meaning it can serve as a legal document even if a person has lost capacity, unless otherwise specified in the Power of Attorney. Nevada statutory Power of Attorney forms contain a checklist of powers that the person’s Agent can and cannot do. The Power of Attorney can be executed before 2 witnesses or signed by the person before a Notary. The Power of Attorney for Medical Decisions is also executed when a person with capacity names another or others to make decisions if the person becomes incapacitated. And, the Power of Attorney can be modified, restricted or revoked.

By contrast, a Petition for Full Guardianship has legal requirements for petitioners prior to filing for Guardianship. Proposed guardians must show by clear and convincing evidence that a Guardianship should be granted. An Attorney must be appointed by the Court to advocate for the Proposed Protected Person unless one has been or can be retained by the Proposed Protected Person. The Court may order the proposed guardians to take Guardianship training. The Court must consider without limitation whether petitioner(s) have engaged in the habitual use of alcohol or any controlled substance during the previous 6 months; have been judicially determined to have committed abuse, neglect, exploitation, isolation or abandonment of a child, his or her spouse, his or her parent or any other adult; whether petitioner is incapacitated or has a disability; and whether the proposed guardian has been convicted in this State or any other jurisdiction of a felony. Further, the Court may consider whether the proposed guardian has filed for bankruptcy.

Guardianship hearings are set, witnesses are heard, evidence is submitted, and the Court will determine whether a Guardianship is necessary and whether the petitioners have proved their case. The process can be lengthy and that is why the Supreme Court of Nevada has said “Guardianships are not to be lightly granted and are not required for every individual who suffers from a mental illness.” Rubin v. Rubin (In re Guardianship of the Person and Estate of Rubin), 491 P.3d 1. If your loved one can be protected through Powers of Attorney, or other less restrictive alternatives, that may be the favored option.

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