Guardianship

Types of Guardianships

Guardianship of the Person

  • Guardianship of the person allows the guardian to make personal and medical decisions for the ward (the ward is the person over whom the guardianship is granted).
  • Guardianships that involve minors or adults unable to care for themselves are usually guardianships of the person.
  • Guardians are required to file an annual report of guardian. A fill in the blank form can be obtained through your local court.
  • When a guardian has guardianship of the person over a minor child, he or she steps into the shoes of the parent and has the right to make decisions for the child.

Guardianship of the Estate

  • Guardianship of the estate allows the guardian to make financial decisions for the ward.
  • Guardianships of the estate are requested when the ward has property or assets that need to be overseen. If the ward has no assets and it is not foreseeable that the ward will receive assets, guardianship of the estate may not be needed and may result in additional unnecessary work.
  • When a minor child inherits or acquires property, a parent may be required to obtain a guardianship of the estate to manage and oversee the child’s funds until the child becomes 18.
  •  Annual accountings are required unless the court grants summary administration, which may allow a guardian to file accounting every two years, three years, or more.
    • Summary administration is usually only granted when the estate is under $5,000 or under special circumstances such as when the estate is in a trust and cannot be accessed.
    • Accountings must detail the ward’s assets and include any disbursements from the ward’s account, including those approved by the court. The court takes accountings VERY seriously and may terminate the guardianship or sanction a guardian if funds are not carefully accounted for.
    • Guardians MUST retain receipts for disbursements made from the ward’s accounts or for anything the guardian purchased on the ward’s behalf if the guardian will later seek reimbursement.
    • The court will probably request detailed receipts and records for all disbursements made from the ward’s account so keep all receipts.
    • The court will most likely NOT approve an expense if there is not a receipt for it or it is not carefully documented.
    • All disbursements from the wards account must be for expenses benefitting only the ward!!! The ward’s funds belong only to the ward.
    • The court CAN and HAS ordered a guardian to repay funds withdrawn from a ward’s account without court approval. When in doubt, do NOT spend the ward’s funds.
  • The Court may require that all of the ward’s funds be placed into a blocked account through any financial institution.
    • EXCEPTION: Social Security death benefits received by a minor child may be spent for the care/maintenance of the ward without court permission.
    • A Proof of Blocked Account form must be filed with the court once the ward’s funds have been placed into the blocked account.
    • The document must provide the name of the guardian, the ward’s name, the institution with which the funds were deposited, the account number and name, and the amount.
    • The document must state that the funds are in a blocked account and that no funds may be withdrawn without court order.
    • The document must be signed by an authorized individual from the financial institution.
  • Court approval must be obtained before liquidating or selling any of the ward’s assets.
  • Once again, guardians may NOT utilize funds without court approval!
    •  The court may approve a budget or requests for allotments from the ward’s account for maintenance or care of the ward.
    • A guardian of the estate who is the ward’s parent may NOT withdraw funds from a ward’s account for expenses that a parent would normally be responsible for such as food, clothing, housing the ward, or birthday gifts.
    • Guardians may obtain court approval for special expenses such as private school tuition, purchase of car, or college preparatory expenses.
  • Guardianship of the Person and EstateAllows the guardian to make all financial and personal decisions for the ward. This type of guardianship carries the restrictions and rights of both of the above types of guardianship.

Eligibility to be a Guardian

Note:  These guidelines do not apply to private professional guardians, which have other requirements established by law.  If you are seeking guardianship as a private professional guardian, or a guardian who services 3 or more wards not related to you by blood or marriage, FOR A FEE,  you are encouraged to consult with an attorney.The guardian must NOT be mentally incompetent.

The guardian must NOT be mentally incompetent.

The guardian must be over the age of 18.

If the guardian is not a Nevada resident the guardian must designate a registered agent.

The guardian cannot have any felony convictions, no matter how old the conviction.

  • The court will grant guardianship to a person with one or more felony convictions ONLY if all 2nd degree relatives have received notice AND there is no one else who can/will serve as guardian.
  • 2nd degree relatives are parents, children, siblings, grandparents, and grandchildren. Aunts and uncles are NOT 2nd degree relatives.
  • Even with consents from the parents, if the guardian has a felony conviction there must be notice to the 2nd degree relatives AND a hearing.
  • The court will NOT grant guardianship to someone with a prior conviction for a sexual crime, even if there are no other relatives to be guardian.
  • The guardian cannot have been suspended or disbarred from practice of law, accounting, or any other profession that involves managing money.
  • The guardian cannot have committed abuse or neglect of child, spouse, parent, or other adult.
  • As with felonies, the court might grant guardianship in this instance only if the 2nd degree relatives have received notice and there is no one else who can serve as guardian.
  • The court will also consider the amount of time elapsed since the abuse/neglect, the circumstances, and the severity of the abuse/neglect.

If more than one person seeks guardianship, the court will give preference to the following:

  •  Individuals nominated for guardianship by the parent if the ward is a minor child or by the ward or the ward’s relative when the ward is an adult.
  • The court will give consideration to requests made by a minor ward age 14 or older but the court can choose to ignore the request.

The following, in order of preference for an adult guardianship:

  • Spouse
  • Adult child
  • Parent
  • Any relative with whom the adult has resided for more than 6 months before the filing of the petition or any relative who has a power of attorney executed by the adult while competent
  •  Any relative currently acting as agent
  • Adult sibling
  • Grandparent or adult grandchild
  • Aunt/uncle or adult niece/nephew or cousin
  • Any other person recognized to be in a familial relationship with the adult
  • Any recommendation made by a master of the court or special master pursuant to NRS 159.061 or
  • Any request for the appointment of any other interested person that the court deems appropriate, including, without limitation, a person who is not a relative and who has a power of attorney executed by the adult while competent.

The following, in order of preference, for a minor guardianship:

  • Parent
  • Adult sibling
  • Grandparent
  • Uncle or aunt
  •  Any recommendation made by a court master
  • Any recommendation made by:
    • An agency which provides child welfare services, an agency which provides child protective services or a similar agency; or
    • A guardian ad litem or court appointed special advocate who represents the minor.
  • Any request for the appointment of any other interested person that the court deems appropriate.

If there are no family members or friends available to serve as guardian, the Public Guardian may be appointed instead.

The court may also refer the case to the Public Guardian’s Office or a private professional guardian if the court suspects that funds have been taken or that the ward has been mistreated.

Guardianship of Child

Guardianship over a Child

These are usually granted either when the parent(s) are unable to care for the ward or, in the case of estates, when the ward inherits or receives assets.

Guardianships are not permanent and can always be terminated.

  • Guardianships over minors always terminate automatically when the ward turns 18, even if guardianship is still necessary.
  • If a guardian wishes to continue a guardianship after the ward reaches 18, the guardian must file for an adult guardianship, which can be started shortly before the ward turns 18.

Guardianship orders will replace existing custody orders.

  • While the guardianship is in place, the guardian “steps into the shoes” of the parent and has custody, regardless of whether there was a custody order between the parents.
  • While the guardianship is in place, the guardianship order is the controlling order, not any prior custody order.
  • Once a guardianship is terminated, prior custody orders are automatically back in effect and all custody and/or visitation orders should be followed.

Guardianship Petitions Without a Court Hearing (Ex Parte Petition)

To file ex parte, the petitioner must have written consent from both parents.

The petitioner may also proceed with only one parent’s consent if:

  • The father is truly unknown, meaning that paternity has never been established in a custody, support or other case, and  no father is listed on the ward’s birth certificate (you must file the birth certificate  to show this)  OR
  • If the consenting parent has sole legal and physical custody of the ward (you must file the custody order, even if order is from Nevada) OR
  • The non-consenting parent’s parental rights have been terminated (you must filed the order terminating that parent’s rights) OR
  • The non-consenting parent is deceased (you must file a death certificate) OR
  • The ward was adopted by a single person (the adoption decree must be filed).

If both parents are deceased, guardianship can NOT be granted ex parte and a hearing must be held.

Consents must be in writing, notarized, and less than 6 months old at the time the case is filed.

If the minor ward is 14 years or older, the petitioner must file a consent from the ward.

If there is an open child welfare case before the juvenile court, the guardianship court will NOT grant guardianship without prior consent from the judge in the juvenile court.

Ex Parte Petitioner Process

Complete a Petition for Appointment of Guardianship. You can either have the parent(s) listed as co-petitioners OR simply attach the parent(s) consents to the petition.

See above for the examples of when an ex parte petition can contain only one parent’s consent.

The court will review ex parte petitions more carefully and all necessary information must be provided.

Petition should provide:

  • Address, birthday, name of proposed guardian and ward;
  • Relationship between the ward and proposed guardian;
  • How long the ward has been with the guardian;
  • Detailed explanation for why the guardianship is needed;
  • State where the ward lives;
  • Whether the  ward is subject of a custody order and if so, from what state and when was the order issued;
  • Whether CPS is currently involved with the ward (sometimes referred to as a “432B” investigation);
    • If there is an open child welfare case before the juvenile court, the guardianship court will NOT grant guardianship without prior consent from the judge in the juvenile court.
    • The petitioner will need to get juvenile court minutes to show that the court approves of the guardianship.
  • Names and addresses of all second degree relatives which are:
    • Parents
    • Grandparents
    • Siblings (includes half-siblings but NOT step-siblings)
    • If a sibling is a minor, that child’s guardian must receive notice and be listed on the petition.
  • If the ward has assets, a detailed description of the assets.
  • Petitioner MUST state whether he/she has ever been convicted of a felony, been disbarred/suspended from a field involving management of money, or been convicted or plead guilty/no contest to abuse or neglect (even if the answer is no).
  • If the ward is 14 years or older, the petition must also include a consent signed by the ward.

File the completed forms at your local court including the Petition, the parents’ consents, a Family Court Cover Sheet, and an Inventory Appraisal and Record of Value (only if seeking guardianship involves an estate).

  • Filing fees vary by county but in some counties there is no filing fee for guardianships unless the proposed ward has an estate of $20,000 or more.
  • When your guardianship involves an estate, if you are low income you can still apply for a fee waiver by completing and submitting a fee waiver packet, which can be obtained through your court’s self-help center.
  • File a copy of the guardian’s identification and identification of the ward. Ward’s identification can be a school ID, a birth certificate, or a copy of the ward’s social security card.
  • Separate consents from the parents do not need to be filed if the parents sign the Petition as co-petitioners.
  • All consents must be notarized and less than 6 months old.

After filing the forms, submit the forms and a completed Order Appointing Guardian to the judge assigned to your case. NOTE: if filing in Clark County, the forms should be submitted to the Guardianship Department instead of the judge’s department.

  • Once the guardianship order has been signed, it will have to be filed and the new guardians will have to appear at the clerk’s office to be sworn in.
  • At the time of swearing-in, guardians will need to bring completed Letters of Guardianship.

The new guardian will need to mail a copy of the Order and a Notice of Entry of Order to all the second degree relatives (listed above).

  • If guardianship involves an estate and a blocked account is required, the guardian must take the stamped Letters of Guardianship to the bank or credit union of the guardian’s choice to establish the blocked account.
  • The guardian MUST file proof of the blocked account, which you can get from the bank when the time the account is opened.
  • Do NOT forget to get a blocked account! Failure to do so can result in the court terminating/ending the guardianship!

Guardians MUST file a yearly Report of Guardian for all guardianships. When there is a guardianship of the estate, the guardian must also file an Annual Accounting unless the court grants “summary administration.”

Guardianship Petition with Court Hearing

Does not require consent from either parent but the petitioner must make sure that the parents receive notice of the petition.

Complete the Petition for Appointment of Guardian, providing the same information required for an ex parte petition.

File the documents with your court along with copies of the proposed guardian and ward’s identification, and a Citation to Appear, where the Clerk will fill-in the court date. In most counties there is no filing fee for filing a guardianship unless the proposed ward has an estate of $20,000 or more.

Serve all second degree relatives with a copy of the Petition and Citation to Appear. Relatives that must be served include:

  • Parents MUST be served even if not involved with the child unless:
    • Deceased (file the death certificate.)
    • Parental rights have been terminated (file the order terminating rights.)
    • One parent has sole legal and physical custody or the ward was adopted by a single party (file the order or adoption decree.)
    • Father is truly unknown, no paternity established, and no father is on the birth certificate (file birth certificate)
  • Grandparents
  • Adult siblings or the guardian of minor siblings (includes half-siblings.)
  • If there are no surviving relatives to serve, the Public Guardian’s Office must be served.

Service can be completed by:

  • Personal service at least 10 days before the hearing. Must file an Affidavit of Service from the third party serving.
  • Certified mail sent at least 20 days before the hearing. Must file a copy of the certified mailing receipts and the return green card or it can be brought to the hearing.
  • Service by publication but it must be approved by the court. If notice will be done by publication you should plan ahead!! The hearing should be set at least two months in advance because it takes awhile to complete the publication.
    • To request to serve a relative by publication, the petitioner must first try to send the documents to the relative at that person’s last known address via certified mail then the petitioner must file and submit to the judge the following:
    • An Affidavit for Service by Publication stating the last known address, the date certified mailing was sent to the last known address, and the date the person was last known to reside there;
    • An Affidavit of Due Diligence describing at least two things you did to try to locate the relative such as going to the DMV to check records or contacting power or water companies for records; then obtain
      • A signed Order for Service by Publication.
  • Publication must run for three consecutive weeks prior to the hearing and the final ad must run at least 10 days before the hearing.
  • Multiple relatives can be noticed through a single publication but a separate Affidavit of Due Diligence will need to be submitted for each person.
  • Once the Order for Service by Publication is signed by the judge, the order must be filed at the Clerk’s Office and taken (along with the Citation to Appear) to the newspaper to run the publication. You must pick a newspaper in the city where the relative was last known to live.

At the Hearing

  • The ward MUST appear in court UNLESS the ward is 14 years or older and has signed a consent.
  • If service to relatives was done by certified mail, petitioners will need to bring copies of certified mailing green cards.
  • Petitioner will need to bring a completed Order Appointing Guardian for the Judge to sign and completed Letters of Guardianship for the Clerk to administer along with the guardian’s oath.
  • If the parents appear at the hearing to contest the guardianship or if another party objects or files their own petition for guardianship, a trial may be scheduled.
  • If the case progresses to a trial, the petitioner will need to show that it is in the best interest of the ward for the petitioner to be appointed guardian.
  • Nevada follows “the parental preference doctrine,” which means that courts prefer not to interfere with a parent’s right to raise their child.
  • However, the court will expect the parents to have a stable residence, stable income or resources to provide for the ward, no drug or alcohol abuse, and no current criminal involvement.
  •  If the parent fights the guardianship and the court finds at trial that the guardianship is needed, the parent will have to prove that either his or her circumstances have materially changed AND that terminating guardianship would substantially enhance the child’s life.
  • This does NOT apply if the parent consents to the guardianship.
  • If the guardianship is granted, the Order must be filed at the Clerk’s Office, the guardians are sworn in, and the Letters of Guardianship will be stamped.

Guardianship of Adult

Need for Guardianship

Guardianship may be needed if someone cannot take care of him or herself and/or his or her property. Unfortunately, due to lack of foresight or lack of advice, many individuals fail to make any provision as to how they or their property should be managed in the event they should lose their mental capacity.  Thus the need for guardianship.

Please note that the test is whether the person has the capacity to make responsible decisions, not whether the person’s decisions are in fact responsible.  Everyone, including older persons, have the right to behave foolishly or make irrational decisions without fear that he or she will be declared incapacitated and fall under the control of a guardian.  Furthermore, just because an individual is old, frail, and chronically ill does not in itself mean that the individual is incapacitated and in need of a guardian.

There are three types of guardianship: (1) Guardianship of the Person, (2) Guardianship of the Estate, (3) Guardianship of the Person and the Estate.  A Guardian of the Person only has authority to make personal and medical decisions.  A Guardian of the Estate has the authority to make financial decisions only.  In a Guardianship of the Person and the Estate the guardian has authority over both financial and personal/medical decisions.  The courts will remove only those rights that the proposed person under guardianship is incapable of handling.

Finding a Guardian

In the state of Nevada, every county has an appointed public guardian.  The public guardian is available when no family members or friends are able, willing or appropriate to serve on behalf of the alleged incapacitated person.

For information about your local public guardian, contact the Nevada Aging and Disability Services Division at (775) 687-4210.

Guardianship Process

Complete a Petition for Appointment of Guardianship. Petition should provide:

  • Address, birthday, name of proposed guardian and ward;
  • Relationship between the ward and proposed guardian;
  • How long the ward has been with the guardian;
  •  Detailed explanation for why the guardianship is needed;
  • State ward lives in;
  • Whether the ward has a revocable/living trust, durable power of attorney or nomination of guardian;
  • Names and addresses of all second degree relatives which are:
    • Parents
    • Grandparents
    • Siblings (includes half-siblings but NOT step-siblings). Note that when a sibling is a minor, the minor’s guardian must receive notice and be listed on the petition.
  • If the ward has an estate, a detailed description of the assets.
  • Petitioner MUST state whether he/she has ever been convicted of a felony, been disbarred/suspended from a field involving management of money, or been convicted or plead guilty/no contest to abuse or neglect (even if the answer is no).

File the completed documents along with copies of the ward’s and the petitioners’ identifications with your local court.

  • In many counties, there is no filing fee for filing a guardianship unless the proposed ward has an estate of $20,000 or more.
  • If the ward’s estate is worth more than $20,000 but you cannot afford the filing fee, you can apply for a fee waiver by obtaining a fee waiver packet from your self-help center and submitting it.

You MUST file a physician’s certificate describing why the ward needs a guardian.

  • The certificate must describe the ward’s limitations and how those limitations affect the ward’s ability to care for his or herself.
  • The certificate must be completed by a professional who is or has treated the ward.

Serve all second degree relatives with a copy of the Petition and Citation to Appear. Relatives that must be served include:

  • Spouse
  • Parents
  • Grandparents
  • Siblings or the guardian of minor siblings (includes half-siblings)
  • If there are no surviving relatives to serve, the Public Guardian’s Office must be served.

Service can be completed by:

  • Personal service at least 10 days before the hearing. Must file an Affidavit of Service from the third party serving.
  • Certified mail sent at least 20 days before the hearing. Must file a copy of the certified mailing receipts and the return green card or it can be brought to the hearing.
  • Relatives can be serviced by publication but only if it is approved by the court. If you will need to serve by publication plan ahead! The hearing should be set at least two months in advance because it takes a while to complete the publication.

To serve a relative by publication, the petitioner must mail the petition and citation to the relative’s last known address via certified mail, then submit to the judge:

  • An Affidavit for Service by Publication stating the last known address, the date certified mailing sent to the last known address, and the date the party was last known to reside there.
  • An Affidavit of Due Diligence describing at least two different things that you did to try to locate the person such as going to the DMV to check records or contact the power or water companies to see if they have a record.
  • And then submit and obtain:
    • A signed Order for Service by Publication.

Afterwards, the publication must run for three consecutive weeks prior to the hearing and the final ad must run at least 10 days before the hearing. Multiple people can be noticed through a single publication but a separate Affidavit of Due Diligence will need to be submitted for each person. Once the Order for Service by Publication is signed by the judge, the order must be filed at the Clerk’s Office and taken (along with the Citation to Appear and Show Cause) to the newspaper of your choice. Select a newspaper in the city where the relative was last known to live.

Both the petitioner and the ward must appear at the hearing. The ward must appear in court unless you can provide a certificate from the ward’s doctor stating why the ward cannot be present. The court will ask the ward if he or she consents to the guardianship or if he or she wants someone to represent him or her in the guardianship proceedings.

In order to grant the guardianship, the court must find that the ward is “incompetent,” or unable to care for him/herself, and that the petitioner is a right person to be guardian. Petitioner will need a completed Order Appointing Guardian and completed Letters of Guardianship.

If the ward or any family members contest the guardianship, a trial may be scheduled.

If the guardianship is granted, the Order must be filed at the Clerk’s Office, the guardians will be sworn in, and the Letters of Guardianship will be stamped.

Terminating a Guardianship

Guardianships terminate automatically when a child turns 18 OR when the ward dies.

A guardian may NOT move to another state with the ward without first petitioning the court to request permission to move.

  • If the guardian moves without first getting permission, the court may terminate the guardianship.
  • A parent may file a Petition to Terminate Guardianship of their minor child.

The packets for terminating guardianship can be obtained at your local court. . The forms will need to be completed and filed, and a parent seeking to terminate the guardianship will need to serve the guardian and the other parent (unless that parent is unknown, dead, his or her rights were terminated, or the parent filing the petition had sole custody).

Service can be effectuated either: personally, with 10 days’ notice before the hearing; or by certified mail, at least 20 days before the hearing.

If the parent consented to the guardianship when the guardianship was granted, the parent only needs to show that he or she can now care for the child.

  • The court will look for 6 months of stable employment, 6 months of stable housing, no drugs/alcohol issues, and no current criminal involvement/charges.
  •  If the parent did not consent to the guardianship, and the court appointed the guardian after a trial, the parent will have to prove that he or she can now care for the child AND that the guardians can NOT now care for the child.

The court may choose to remove a guardian if:

  • The guardian becomes disqualified, mentally incompetent, unsuitable, or otherwise unable to serve as guardian.
  • The guardian of an estate did not properly manage the ward’s assets.
  • The guardian failed to perform any duty required by law or the court.
  • It is in the ward’s best interest to appoint another guardian.
  • The ward has recovered mentally or physically and no longer needs a guardian.

The ward or a non-parent relative may also file a Petition to Terminate guardianship but he or she must serve the guardian, the ward, and the second degree relatives (parents, grandparents, siblings) with the Petition to Terminate.

Service of the family members can be done by personally serving them at least 10 days before the hearing or by certified mailing at least 20 days before the hearing.

Unless the parties agree to terminate the guardianship AND the guardianship is no longer needed or there is an appropriate person to become the new guardian, the court will hold a hearing. The person asking to terminate guardianship will need to show that:

  • Guardianship is no longer needed or that another qualified person (possible him or herself) has filed a petition to become a new or “successor” guardian AND
  • That it is not in the best interest of the ward for the current guardian to continue being guardian.

If a guardianship of the estate is ended, the former guardian must file a final accounting:

  • Within 30 days if the guardian is removed OR
  • Within 90 days if the guardianship is terminated by any other way.

After the guardianship is terminated, the guardian must return all of the ward’s property to the ward or to the ward’s new guardian (if a new guardian was appointed.)

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