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When an individual whom you love requires assistance, whether such assistance is required because of disability or age, it’s always a stressful and challenging time. The stresses are usually increased as the caretaker role is undertaken and questions begin to arise regarding what rights and limitations the caretaker may have to make decisions on behalf of their loved one. The rights and limitations vary depending upon the legal documents which have been executed and the types of decisions which need to be made.
The first question which should be considered is whether your loved one is capable of continuing to care for themselves. In order to be considered incompetent by a court of law such that a guardian could be appointed, a court will require medical opinions addressing the extent of the limitations for the individual. Specifically, a court will want to take some evidence regarding whether the individual can make financial decisions for themselves and be responsible for managing their assets. Additionally, a court needs to know if the individual is capable of making decisions and taking care of themselves. This allows the court to address the specific circumstances of the specific case for example, if the individual can care for themselves but not their finances it’s possible to obtain a limited guardianship solely over the person’s estate. If someone can’t care for either their finances or themselves then the court may award a guardianship of both the person and the estate.
The second questions should be whether documents were executed which would allow someone to act without obtaining a guardianship. Many competent adults, at some point in their life, execute an estate plan. Depending upon the type of estate plan which they have prepared, and who prepares the documents, the estate plan may contain durable powers of attorney. A durable power of attorney may allow a competent adult to identify an individual who can make medical decisions on behalf of the adult in the event the adult is unable to make such decisions on their own behalf. A durable power of attorney may also nominate someone to make all financial decisions, for example the payment of bills, on behalf of the adult executing the document. If your loved one has executed powers of attorney while they were legally competent you may be able to avoid the guardianship process and utilize the powers of attorney to act on their behalf.
Nonetheless, powers of attorneys don’t always allow for the avoidance of guardianship so your final question should be whether guardianship is actually necessary. The most common situation in which guardianship is necessary is when no durable power of attorney has been executed prior to a loved one being deemed incompetent. Without an applicable durable power of attorney, and decisions which must be made, guardianship will likely be necessary. Additional situations exist where durable powers of attorney have been executed but guardianship is necessary, usually based upon the circumstances and decisions which need to be addressed. For example, when there are concerns regarding potential abuse by the agent nominated in the power of attorney or when a third party, such as an assisted living facility, requests an individual be appointed as guardian prior to providing services to your loved one. If you find yourself in the situation in which you need to obtain guardianship of a loved one then the legal process to obtain guardianship requires court action.
Jennifer Mahe has practiced law in the Northern Nevada area since 2005 focusing on general civil matters such as real estate, business, litigation and estate planning. She can be reached via the Mahe Law, Ltd. website, www.mahelaw.com, or at 775-461-0992. If you have a legal topic related to general civil law which you would like to see addressed in this column in the future, please send that topic to the Nevada Appeal.