When is a guardian needed?

Your Questions, Answered

The information outlined below should serve as a general guideline for guardianship consideration. We’re here to help lead you through your family’s specific needs.

What is the difference between a Guardian of the Estate and Person?

The Guardian of the Estate, manages finances ensuring that the income and resources are used solely for the protected person’s care and wellbeing. Duties include securing, marshaling, and managing all existing personal and real property. Other states and jurisdictions may refer to this as conservatorship.  

The Guardian of the Person is tasked with consenting and making medical decisions for an individual. Duties include monitoring and selecting the least restrictive setting or residence an individual receives the medical care they need, coordinating physician appointments and ensuring proper medical care, and consenting for medical treatment.  

I live out of state, can I serve as my loved one's guardian in Nevada?

Yes!  NRS 159.0613 5 & 6 provides for a non-resident to serve as a guardian in the state of Nevada. You must designate a resident agent and provide the court with the appropriate notice. See our resources link to the Clark or Washoe County self-help centers and NRS 159 for additional information.

What if someone is able to make some but not all of their decisions?

Many times an individual is capable of participating and making some or all of their medical decisions but is struggling with bill paying and financial management. Engaging with the primary care physician to provide a comprehensive assessment of the individual’s capacity could lead to the drafting of supportive decision making documents,  estate planning documents including power of attorneys and/or the appointment of a representative payee to receive and manage income.

What if an individual does not have capacity to execute estate planning or other advance directives, but is able to make some of their own decisions?

A Guardianship, if needed can be crafted to meet specific needs or goals for an individual, such as a Special Guardianship for the purposes of obtaining Medicaid benefits. All Guardianships should focus on the specific needs of the protected person and employ the standard of Person-Centered Planning. This allows the individual to participate in decision making to the extent they are able and maximizes their independence. 

My spouse needs nursing home care but I don't want to lose all our assets. Do I have to sell our home and spend all of our money first?

NO!  Nevada Medicaid Spousal Impoverishment rules allow for a community spouse to remain in the home and retain both a portion of the marital assets and the institutionalized spouse’s income. In 2021 a community spouse may retain up to  $130,380.00 in countable resources and up to $4,764.00 in combined income. If you are over these amounts of resources or income, don’t despair! There are alternatives and pathways to obtain Medicaid benefits for your spouse.  Let our office be your first inquiry into this complicated area of Medicaid. Disclaimer: We are not attorneys and your situation may require the expertise & experience of an elder law attorney. Our Medicaid Specialist has extensive training in navigating these unique situations and in coordination with your attorney can accomplish gaining Medicaid benefits for your loved one and preserving the estate.

How is a Guardian paid?

A Guardian is paid only after submitting an invoice to the courts for the Judge’s review and subsequent approval. This is often referred to as a fee petition. The payment is made from the Protected Person’s estate unless other arrangements are made and disclosed to the court. Our office as a Private Professional Guardian holds itself to a higher standard, providing that each invoice details the work performed, the individual that performed the work, the benefit to the Protected Person, and billed at a rate equivalent to the individual performing the work’s skill set. The PPG is also required to maintain a time log detailing the start and end time of each task billed. The guardian should also consider the size of the Protected Person’s estate and their needs first before seeking compensation. 

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