Music playing The Legal Aid Center of Southern Nevada and the William S. Boyd School of Law have partnered for more than 14 years offering free legal information classes to the public. Our students, supervised by attorneys, teach classes on divorce, paternity, custody, guardianship, bankruptcy, small claims and foreclosure. Over the course of our partnership with the Legal Aid Center of Southern Nevada, more than 45,000 people have attended our free legal education classes, learned important information on their particular legal disputes, and have gained an understanding of their rights under the law.
We continually review and expand these programs to be responsive to changing needs in our community, and we are happy to provide them as a public service. This tutorial is part of our effort in making legal information more easily accessible to the public. Welcome to the tutorial segment on establishing a guardianship in the state of Nevada. My name is April Green, and I am an attorney at the Legal Aid Center of Southern Nevada, which I will call LACSN from this point forward. This community legal education tutorial is sponsored by LACSN.
And the William S. Boyd School of Law. The information is only intended to give general legal information about court rules, procedures and Nevada law. Nevada guardianship law can be found in Chapter 159 of the Nevada Revised Statutes. The information given cannot take the place of a private attorney, however. You may contact the Legal Aid Center at 702.386.1070, extension 155, for an opportunity to sign up for a free 15minute consultation with a family law attorney to answer any questions you may have about your particular case. Before we begin, I would like to give you.
LEGAL AID Guardianship Part 1 How to establish a guardianship over an adult or child.
More general information about our program. The Legal Aid Center of Southern Nevada, along with the William S. Boyd School of Law, provides inperson legal education classes on the subject of guardianship once per week in LasVegas. You may call the Legal Aid Center at 702.386.1070 and follow the prompts regarding the classes and to obtain more information about the location, time and dates of the guardianship classes. The classes are free of charge to the public. After the class, you will be given information on how to apply for a free attorney, free legal representation,.
In your uncontested guardianship case. We only are able to provide attorneys in uncontested cases. If someone is likely to object to your guardianship thereby making it a contested guardianship case, Legal Aid will not be able to represent you. Also the SelfHelp Center at the Family Law Courthouse, located at 601 North Pecos Road in LasVegas, Nevada 89101, sells guardianship forms and packages in person. You may also download the guardianship court documents from the website listed on the screen free of charge. Many people do represent themselves in guardianship.
Proceedings without major difficulty. So let’s begin by talking about terminology. For instance, what exactly is a guardianship A guardianship is a proceeding by which you take responsibility for the person or the estate, or both, of what’s called a ward, which will be defined later. If you take responsibility for a person, that means that you are taking responsibility for the well being and care, so that would be called guardianship of the person. If you are taking responsibility or guardianship over someone’s estate, you’re taking responsibility for their finances and property and also management of debt,.
That’s called being the guardianship over an estate. Of course if you take guardianship or if you are trying to take guardianship of the person and the estate, then you will have the responsibility for both of those things The responsibility for the well being of the person and care of the person as well as any property that they may have in their estate. You will have to make a choice as to what you are asking the court to allow you to be responsible for when you start the case.
More definitions that you should be aware of are one word, petitioner. You are the petitioner. You’re petitioning the court to ask for the responsibility of being a guardian. So before the guardianship is awarded, you are the petitioner. The ward is the person you want to have guardianship over. That ward may be a child, or it may be an adult. So when you decide what you’re going to do, who you want to have guardianship over, you have to decide how many people are asking to be guardians over a particular ward.
You need to know those things and make those decisions before you purchase your paperwork because some paperwork is geared towards a twoguardianship proceeding, some are geared towards a oneguardian proceeding, some are for children, guardianships over children, and some are for adults. So those are the decisions you’ll make early on. But before we get into more detail about getting the guardianship started, there are alternatives to guardianship. Particularly for adults, this is a very important role that you will play in a person’s life and it will deprive especially adults of liberties.
And rights they have to run their own lives. So in many cases you won’t have to go as far as a guardianship proceeding, and some of the alternatives I’m going to talk about briefly right now may be alternatives that you can engage in rather than going to court and starting a guardianship proceeding. For instance, a Durable Power of Attorney is a form that may be purchased from a legal forms store that gives you the right to handle certain business affairs and specific transactions on behalf of another person,.
So that’s an alternative. There are also living wills that can be signed by the person who would be the ward to give you rights to making decisions regarding lifesustaining treatments or medical decisions medical healthcare proxy forms are available for those kinds of reasons. There are also sixmonth informal guardianships. Those forms are given out at the Clark County School District, and it is a guardianship proceeding which well, I shouldn’t call it a proceeding it permits an informal guardianship for a period of six months and is signed by usually the parents of a child.
Or a parent and the person who is going to take responsibility for a child, and that does not involve any court proceeding whatsoever. It’s signed before a notary and if it’s used for the school district, it’s turned over to the school district. Adoption is also an alternative to guardianship, also a living trust. Those documents are usually prepared by an attorney, but it’s an alternative to a guardianship. There are also special guardianships which can grant rights to a guardian for very limited purposes or for a specific transaction even,.
So that would be less power than you would have with a general guardianship over someone’s person andor estate. Finally, there’s the option to be a representative payee for a person, and that usually is something that is done at the Social Security Department whereby if somebody’s entitled to receive benefits, a representative payee is someone who can receive funds and handle those funds on behalf of a person who designates an individual to be the representative payee. So those are some alternatives to guardianship. So now we’ll go to the question of who can be a guardian.
The Nevada Revised Statutes Chapter 159.059 really answers that question by telling you who cannot be a guardian A person who is incompetent cannot be a guardian, a minor cannot be a guardian, and in many cases, a person who’s a convicted felon cannot be a guardian unless the court determines that the felony should not disqualify a person from serving. Sometimes when a felony is very old or is completely unrelated to the kinds of duties and responsibilities a guardian would have, the court may be willing to look away from the felony.
And allow the guardianship. Persons who have been disbarred from the practice of law or accounting or any other profession that involves the management of money will not be allowed to be a guardian. And most especially, anyone who has been determined to have committed neglect or abuse of a child, a spouse, a parent or any other person is usually not permitted to be a guardian unless again the court determines it will allow it, and it may allow those things to happen if the court determines it’s in the best interest of the ward to do so.
Now, how do we get started There are a number of forms that you will have get, and again, you can download the forms from the SelfHelp Center website or you can also get the forms by buying them from the SelfHelp Center at the Family Law Courthouse which, as I mentioned before, is at 601 North Pecos Road in LasVegas, 89101. The phone number is 702.455.1500. So the first thing you’ll do, you’ll go into your package and you’ll see a document with lot of lines called Exhibit A, and on that document you want to start listing.
The last known addresses of all relatives of the proposed ward down to the second degree of consanguinity, and that means down to grandparents. If the proposed ward is a child, you will need to obtain the last known addresses for the proposed ward, him or herself, the child’s mother or father, any and all sisters and brothers, maternal grandparents and paternal grandparents. For adults, you will need to list the last known address of the proposed ward, any spouse the ward may have, any brothers, sisters, and if the adult ward’s parents are alive,.
The parents and the grandparents on both sides. So you begin by gathering that information. You may have to make phone calls, you may have to do a little research, but you need to include that information. If it so happens that somebody is deceased, you can on the address line on Exhibit A write deceased. But if it’s a parent or someone at the top of that list, for instance the spouse of an adult, then you will need to obtain a copy of the death certificate, if at all possible, to show that to the court.
Also if it’s an adult ward and the ward is either receiving money from or paying money to the Department of Veterans Affairs, then the Department of Veterans Affairs must also be served with the court papers. If in the event an adult or even a child is in a healthcare facility or hospice or some kind of living facility other than a residential setting, that facility should also be served with the guardianship papers and have notice of the proceedings. As I said before, you will find the document called Exhibit A in your package.
Which is where you list all of those persons, and that form will tell you exactly where to list the person’s name, relationship to the ward, and their address. The second form you want to deal with are Consents. You should determine whether the parents of a child ward will sign a consent to your proposed guardianship. If so, the document should be completed and filed with the court. Also if a child is 14 years or older and the child consents to the guardianship, allow the child to sign the consent to the guardianship.
For a child 14 or older and file it with the court andor bring it to the court the day of your hearing. For children, if both parents consent to the guardianship, or one parent consents if the other party is unknown or deceased, the court may potentially grant the guardianship without a hearing however, hearings are always required for adult guardianship. The third document that you will deal with is called Confidential Records. What you need to do with this form is provide the court identifying information for the proposed ward.
And for the proposed guardian or guardians. This might be providing copies of identification such as a driver’s license or state ID or a birth certificate, Social Security card, passport and so forth. You might also provide the numbers for instance, Social Security or driver’s license number in lieu of a copy of the document itself. Just know this information is not available to the public. It’s not a public record, and it’s kept confidential by the court, hence the name Confidential Records on the form. You may not be able to complete your guardianship case.
Unless you provide this information to the court which confirms to the court that the persons who have filed the papers are the people rightfully involved in the case. That’s what the identification does for the court. If the father of the child is unknown and not listed on the child’s birth certificate, the birth certificate should be filed with the court under the confidential records top sheet, and the father should be described as unknown on Exhibit A. Let’s go to the fourth document, the Petition. The petition is the main document which explains.
Who the parties are and why they’re seeking guardianship. You must determine how many proposed guardians and wards there are before you purchase or download the petition because as I explained to you before, there are different forms depending on the number of parties involved. It is very important to answer every question on the petition. If a particular question does not apply to your case, write NA for nonapplicable because leaving lines blank may cause your case to stall until the petition is completely filled out. In the petition you will state your residency.
And the residency of the ward as well as the ward’s status, among other things. Most of the questions in the petition are selfexplanatory and not difficult to answer however, if you’re in LasVegas, remember you do have the Ask a Lawyer program and the community legal education classes as a resource to help you get the forms filled out or at least to understand what they’re asking you for. Those are things you can do if you’re not going to hire an attorney to handle the matter for you. There is a verification at the end of the petition.
Which must be signed before a notary public, and another thing to know which is very important is that the petition is one of the two documents which must be served on people entitled to notice of the proceeding, and all of those people should have already been laid out in your Exhibit A. The fifth form I’ll talk about is the Citation. The citation is also a very important form. It’s the document that tells the recipient that a guardianship proceeding has been filed with the court and gives the date and time of the hearing.
It indicates that if they wish to show cause why the proposed guardianship should not be granted, they should appear at the hearing to state their objections which can be also stated in writing as well. The citation is one of the documents that must be served upon the persons entitled to notice of the proceeding. So the two forms you will serve are the petition and the citation. Now let’s talk about number six, Service of Process. This is very important. You must serve each person listed on your Exhibit A.
By either certified mail, return receipt requested, at least 20 days before the hearing, or you may personally serve the people entitled to service, or some of them by personal service which only has a 10day turnaround in terms of the amount of time between service and the court hearing. So you have two options Serving by certified mail, return receipt requested, or by personal service. If you use certified mail, you must do it 20 days or more before the hearing if personal, 10 days or more before the hearing.
The proposed guardian himself or herself may not serve the persons entitled to service and must get someone who is uninterested in the proceeding and over 18 years of age to not only serve the documents, whether it’s a mailing or personal service, but also to complete the Affidavit of Service or the Affidavit of Mailing. The proposed guardianguardians cannot take care of service. The proof of mailing and proof of service must be filed with the court. Those documents are included in your package, and they’re very important because once they’re completed and filed,.
That is proof with the court that service is complete. This is a very important step. If you serve by certified mail, return receipt requested, you will get that little green and white receipt from the post office with the stamp that includes the date that you mailed the documents. What you can do is get those green and white forms and attach them to a sheet of white paper, perhaps tape those down on the paper and staple that on your certificate of mailing to prove to the court you did the mailing by certified mail,.
And it’s a good idea to let the court see that. If you get the green forms back, just hold on to those and take them to the hearing, but you don’t need to pull them out at the hearing or anything unless the court asks you about it. A necessary party, which all of the people on Exhibit A are necessary parties, may waive service by signing a document called Waiver of Notice. If any one of the persons does such a thing as signing the waiver of notice, that document should be filed with the court,.
And that way the court is not expecting to see any service on that person. Now, if you cannot locate a necessary party, you may ask the court for an order waiving service or an order to serve that person by publication. That is a decision the court will make, and if they allow you to do that, you’ll have to follow the steps for service by publication. Now, preparing for the hearing. Once you have all your papers filed, you just need to get ready for the hearing. If you have an emergency before the hearing.
Concerning the ward, you should call 911 or Child Protective Services if it’s a child. You may also file papers for an emergency guardianship which can be obtained from the SelfHelp Center. Now, here are some of the main steps in terms of being prepared for the hearing. First thing is you must bring the ward to the hearing unless the ward is incapacitated to the point where they cannot attend the hearing or for some other meritorious reason which must be explained to the court at the hearing. The court has discretion to waive the ward’s attendance,.
Although this is rarely given. If the ward is incapacitated or disabled, the ward’s doctor must complete a physician’s certificate to demonstrate that to the court, and that particular form can be obtained from the SelfHelp Center. Also for adult wards there is a document called Admonishment which should be read to the ward and completed and filed with the court before the hearing if possible unless the ward does not have the hearing or cognitive ability to comprehend or to hear what is being said to them. In those situations, you advise the court of that.
At the hearing and they will make a decision. Another very important step is completing the document called Order Appointing Guardian. Now, the order appointing you as guardian is the prize, and it’s your goal to get that document signed by the court. So you must get it out of your package of forms, download it, complete it, and bring it to the hearing. You should not put a date on that document. If the judge signs it, they will date it and they will sign it. Now, once you’ve completed the order for guardianship,.
You’ve got two choices You can either bring it with you completed to the hearing and hand it over to the bailiff to give to the judge at the hearing, or you can take it to the Family Courthouse on the third floor where there is a box for guardianship papers and put it in the box so the court may review it before the hearing. If it’s found to be acceptable and your papers are in order, it may be handed back to you signed by the judge at the hearing, and that’s of course assuming.
That your papers are in order. If the court approves your guardianship evidenced by the judge’s signature on the last page of the proposed order, then you are legally the guardian of the ward and you are no longer the petitioner. Other tips for the hearing are that you should be there early not just on time, but early and dress conservatively. In terms of the order of speaking, you should not address any adversary directly all of your comments should be directed by the court. Now, let’s assume you’ve attended your hearing.
And the judge has signed your order. That’s not the end. We’ve got a few more steps before the case is really over. What you have to do is take that order, go back down to the clerk and efile the document. That gets it a file stamp, and that step makes sure that it becomes a part of the records of the court. Now, what happens if you get to the hearing and find out that someone is objecting to your guardianship Well, then at that hearing, you won’t have a trial.
The court won’t take testimony or anything like that, but it will be so noted that it’s a contested guardianship, and more than likely it will be set down for a future hearing which will be an evidentiary hearing or a trial. The court does adhere to by law certain preferences or order in terms of who has a legal preference to be the guardian of a person as opposed to another person who has objected and may also want to be a guardian of that same person. One of the things if you get into a situation like that.
The first thing the court will look at in a trial is whether there was a written document which nominated one person over another to be the guardian of a ward. For instance, if the parent or parents are deceased and there was a will nominating one person in particular to take guardianship over that child, then that document will carry a lot of weight with the court. Also if the ward is a minor and 14 years of age or older, that consent will carry a lot of weight with the court.
Because clearly that’s a teenager who has a preference to live with a particular person, and that will carry weight with the court. Blood relatives, then relatives by adoption and marriage will also be considered, also spouses are high on the preference list. Adult children, parents, adult siblings, then grandparents or adult grandchildren, aunts, uncles, nieces and nephews. So if you get into a contested case, keep those preferences in mind and the order of those preferences. Of course ultimately the court will do what’s in the ward’s best interest and will make those decisions.
If the case is not resolved between the parties. So we still have a few steps, but I’m going back to the idea that you have your order signed by the court at this point. If you have a contested case and you’re going to trial, you may seek other legal resources to get information in terms of how to prepare yourself for trial. Remember you have the Ask a Lawyer program, you have the community legal education classes both of those programs are in LasVegas or you may always consult or retain a private attorney.
Now, another step, let’s assume you have your order, it’s signed by the judge and it’s been efiled. Now you must complete a Notice of Entry of the order appointing you as the guardian, and you attach that form called notice of entry, which should be in your package, to a copy of the filestamped order for guardianship and you serve the two of those on everybody on Exhibit A that was entitled to service because in this mailing, you’re letting them know that the guardianship was appointed, and you won’t have to mail anything else to them.
After that step is done. But the completion of that notice of entry is a very important step because without the notice of entry, there is really no finality to your guardianship, and it leaves the guardianship open to appeal or challenge long after a challenge could be permitted normally by law. Finally, you must complete another form called General Letters of Guardianship, and you must file the letters with the court, and at that time you will take an oath of office. Those letters of guardianship, often no more than two pages.
Sometimes you can get that information onto one page that is your primary proof of the guardianship that you will use to let third parties know that you are the guardian of a particular ward. It’s a good idea to get several copies of the letters for schools, healthcare providers, facilities, or any third party that needs to have proof in their file that you are the guardian and you have the right to make decisions for another person. Those letters are your primary proof. It’s a good idea to get several copies again of the letters.
Because you’ll probably have to give them out to a lot of different agencies and organizations, and the common practice is to give a copy of the letters, not so much the order for guardianship. If you were awarded guardianship of the person, be aware that you must file a report on the status of the ward each year and file that with the court. If you’re awarded guardianship of the person and the estate or just the estate of the ward, you will also have to file an initial inventory of the ward’s estate.