Guardianship

A guardian has the care, custody and control of the person and has the legal authority to consent to things concerning the daily care of the child. They must be competent, capable, and willing to take on this role.

An appointment of guardian suspends the biological parent’s authority, but it does not terminate the parent’s rights.  A guardian is required to provide all of the child’s basic needs (education, medical care, shelter, etc.)  The biological parents are still financially responsible for the child.

A protected person is defined under NRS 159.0253 as any person (besides a minor) for whom a guardian has been appointed.

General functions of guardian of a person – NRS 159.079 

Unless otherwise ordered by a court, a guardian has the care, custody, and control of the person of the protected person. Guardians are obligated to perform duties that are essential for the care, maintenance, and support the protected person. Such obligations include:

• Supplying the protected person with food, clothing, shelter and all incidental necessaries.
• Authorizing medical, surgical, dental, psychiatric, psychological, hygienic or other remedial care and treatment for the protected person.
• Seeing that the protected person is properly trained and educated and that the protected person has the opportunity to learn a trade, occupation or profession.
• Obtaining information from any government agency, medical provider, business, creditor, or third party who may have medical information about the protected person.
• Changing residency of the protected person to the least restrictive place available that is able to meet the needs of the protected person (within financial reasons).

Guardians are not expected to incur expenses on behalf of the protected person unless the estate of the protected person is able to reimburse the guardian.

Types of Guardianships – NRS 159.0487

1. Guardianship over the Person

The guardian is responsible for the well-being and care of the protected person.

2. Guardianship over the Estate

The guardian is in charge of making financial decisions for the person. Court approval is needed to spend or sell the protected person’s assets even after the guardianship is granted.

3. Guardianship over the Person and the Estate

This type of guardian makes financial and well-being decisions for the protected person.

4. Guardian ad Litem – NRS 159.0455

A court-appointed guardian who works for the state. They have the goal of protecting the interests of the protected person (usually a child) no matter what. A guardian ad litem is only expected to provide the court with information regarding the child’s circumstances.

If you are interested in becoming a guardian ad litem, you can learn about Nevada’s program here.

5. Special Guardian – NRS 159.026

A guardian of someone who is of limited capacity. This includes (without limitation), a guardian who is appointed because a person of limited capacity has voluntarily petitioned for the appointment of the guardian and the court is capable to do so.

6. Co-Guardian – NRS 159.057

A guardian who watches two or more proposed protected persons. If they are both related to a common parent, there is no need to separate petitions, bonds, and other paperwork to be filed. A guardian must keep separate accounts for each protected person.

7. Temporary Guardians – NRS 159A.052 & 159.0525

A guardian who is temporarily appointed by the court for a protected minor who is in need of immediate medical attention or at risk of serious financial loss that cannot be obtained or prevented without a guardian.

Qualifications of a Guardian – NRS 159.0613

Ultimately, the Court will appoint as guardian the qualified person who is most suitable and is willing to serve.

The Court will give guardianship preference to a someone based on a few factors:

1. Whether the nominated person is a resident of Nevada.
2. If the court finds the person suitable to serve as a guardian.
3. If there are two people who could be nominated, the person listed in a will, trust, or other written instrument will be the first priority.

How Does the Court Determine If Someone is a Suitable Guardian? 

• The overall ability of the nominated person to provide for the basic needs of the protected person
• Whether the nominated person has engaged in habitual use of alcohol or controlled substances within six months (with exceptions).
• The proposed guardian’s history with regards to the position of a guardian.
• The physical capability of the proposed guardian.
• Whether the nominated person has been convicted of a felony.

Who is Generally Considered the Most Suitable Guardian?

• Nominations or requests made by the protected person.
• Nominations or requests made by a relative of the protected person.
• The blood relationship of the proposed guardian to the protected person.
• Whether a Non-Resident may be the best fit for the protected person.

Who is Disqualified?

• Is an incompetent.
• Is a minor.
• Has been convicted of a felony relating to the position of a guardian (such as abuse, neglect, or abandonment), unless the court finds that it is in the best interests of the ward to appoint the convicted felon as the guardian of the protected person.
• Has been suspended for misconduct or disbarred from (1) the practice of law, (2) the practice of accounting, or (3) any other profession which involves the management or sale of money, investments, securities, or real property and which requires a license.
• Is a (1) nonresident of Nevada and (2) is not a foreign guardian, has not associated with a co-guardian or a resident of Nevada or a banking corporation, and (3) is not a petitioner in the guardianship proceeding.

Procedure in Guardianship Proceedings – NRS 159.034

To Whom Must a Petitioner Give Notice?

Generally, a petitioner must give notice of the time of the place and the hearing to:

• Each interested person or the attorney of the interested person;
• Any person entitled to notice pursuant to this chapter or his attorney; and
• Any other person who has filed a request for notice in the guardianship proceedings.

How to Give Notice

The petitioner shall give notice not later than 10 days before the date set for the hearing:

• By mailing a copy of the notice by certified,
• Through personal, in-person service,
• In any other manner ordered by the court, upon a showing of good cause

How to Give Notice to a Party with an Unknown Address and Identity

• By publishing a copy of the notice in a newspaper of general circulation in the county where the hearing is to be held at least once every 7 days for 21 consecutive days, the last publication of which must occur not later than 10 days before the date set for the hearing; or
• In any other manner ordered by the court, upon a showing of good cause.

Waiver of Notice

For good cause shown, the court may waive the requirement of giving notice.

• A person entitled to notice pursuant to this section may waive such notice. Such a waiver must be in writing and filed with the court.
• On or before the date set for the hearing, the petitioner shall file with the court proof of giving notice to each person entitled to notice pursuant to this section.

Long-Term Guardianship Petitions – NRS 159.044

A long-term guardianship ends when the child turns age eighteen, the child dies, or a court order determining that guardianship is no longer needed.

Who can petition the court for a guardianship appointment?

Unless the Court specifies otherwise, any interested person, a proposed ward, or a governmental agency may petition the court for the appointment of a guardian.

What must the petition include?

• The name and address of the petitioner.
• The name, date of birth and current address of the proposed protected person.
• A copy of one of the following forms of identification of the proposed protected person which must be placed in the records relating to the guardianship proceeding and maintained in a confidential manner:
                   (1) A social security number;
                   (2) A taxpayer identification number;
                   (3) A valid driver’s license number;
                   (4) A valid identification card number; or
                   (5) A valid passport number.

If not included in the petition, which information must be given to the court 120 after appointment?

• Whether the proposed protected person is a resident or nonresident of Nevada.
• The names and addresses of the spouse of the proposed protected person and the relatives of the proposed protected person who are within the second degree of consanguinity.
• The name, date of birth, and current address of the proposed guardian. Professional guardians must include proof they are qualified to do so. Non-Professionals must show they are not receiving compensation.
• Whether the proposed guardian has ever been convicted of a felony; information regarding the crime committed.
• A copy of one of the following forms of identification, maintained in a confidential manner:
•                  (1) A social security number;
                   (2) A taxpayer identification number;
                   (3) A valid driver’s license number;
                   (4) A valid identification card number; or
                   (5) A valid passport number.
•                  (6) A valid permanent resident card number; or
•                  (7) A valid tribal ID card number

A summary of the reasons why a guardian is needed and recent documentation demonstrating the need for a guardianship. The documentation may include, without limitation:

• A certificate signed by a physician who is licensed to practice medicine in this State stating the need for a guardian;
• A letter signed by any governmental agency in this State which conducts investigations stating the need for a guardian; or
• A certificate signed by any other person whom the court finds qualified to execute a certificate stating the need for a guardian.
• Whether the appointment of a general or a special guardian is sought.
• A general description and the probable value of the property of the proposed ward and any income to which the proposed ward is or will be entitled, if the petition is for the appointment of a guardian of the estate or a special guardian. If any money is paid or is payable to the proposed ward by the United States through the Department of Veterans Affairs, the petition must so state.
• The name and address of any person or care provider having the care, custody or control of the proposed ward.
• The relationship, if any, of the petitioner to the proposed ward and the interest, if any, of the petitioner in the appointment.
• Requests for any of the specific powers set forth in NRS 159.117 to 159.175, inclusive, necessary to enable the guardian to carry out the duties of the guardianship.
• Whether the guardianship is sought as the result of an investigation of a report of abuse or neglect that is conducted pursuant to chapter 432B of NRS by an agency which provides child welfare services. As used in this paragraph, “agency which provides child welfare services” has the meaning ascribed to it in NRS 432B.030.
• Whether the proposed ward is a party to any pending criminal or civil litigation.
• Whether the guardianship is sought for the purpose of initiating litigation.
• Whether the proposed ward has executed a durable power of attorney for health care, a durable power of attorney for financial matters or a written nomination of guardian and, if so, who the named agents are for each document.

NRS 159A.205 – Short Term Guardianships

A short term guardianship is usually for a term of six months unless a shorter term is specified.

When Can a Parent Appoint a Guardian?

• A parent, without the approval of a court, may appoint in writing a short-term guardianship for an unmarried minor child if the parent has legal custody of the minor child, unless otherwise provided in this section or in NRS 127.045.
• The appointment of a short-term guardianship is effective for a minor who is 14 years of age or older only if the minor provides written consent to the guardianship.
• The appointment of a short-term guardian does not affect the rights of the other parent of the minor.

A Parent Cannot Appoint a Short-Term Guardian for a Minor Child if the Child has Another Parent:

• Whose parental rights have not been terminated;
• Whose whereabouts are known; and
• Who is willing and able to make and carry out daily child care decisions concerning the minor,
• unless the other parent of the minor child provides written consent to the appointment.

The written instrument appointing a short-term guardian becomes effective immediately upon execution and must include, without limitation:

• The date on which the guardian is appointed;
• The name of the parent who appointed the guardian, the name of the minor child for whom the guardian is appointed and the name of the person who is appointed as the guardian; and
• The signature of the parent and the guardian in the presence of a notary public acknowledging the appointment of the guardian. The parent and guardian are not required to sign and acknowledge the instrument in the presence of the other.

The short-term guardian appointed pursuant to this section serves as guardian of the minor for 6 months, unless the written instrument appointing the guardian specifies a shorter term or specifies that the guardianship is to terminate upon the happening of an event that occurs sooner than 6 months.

Only one written instrument appointing a short-term guardian for the minor child may be effective at any given time.

The appointment of a short-term guardian pursuant to this section:

• May be terminated by an instrument in writing signed by either parent if that parent has not been deprived of the legal custody of the minor.
• Is terminated by any order of a court of competent jurisdiction that appoints a guardian.

© Willick Law Group

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