Purpose and Types of Guardianship
When an adult is unable to care for himself, or a child’s parents are unable to care for the child, a guardianship may be needed. Read on for more information about the purpose and types of guardianship, where to file for guardianship, and some alternatives to a court-ordered guardianship.
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Guardianship means obtaining the legal authority to make decisions for another person. A “guardian” is the person appointed by the court to make decisions on behalf of someone else. The person over whom the guardianship is granted (the child or the adult) is referred to as the “protected person.”
Normally, parents have the legal right to make decisions for their children, and adults have the legal right to make decisions for themselves. Sometimes this is not possible, and someone else needs to step in to take care of a child or an adult.
A guardianship may be needed over a child if there is no parent available to care for a child. A guardian over the child's estate may be needed if the child inherited assets (for instance, life insurance or cash accounts). This protects the assets until the child is an adult.
A "general guardianship" may be needed over an adult if the adult is incapacitated, meaning the person is unable to take care of himself or herself due to mental illness, mental deficiency, disease, or mental incapacity. A "special guardianship" may be needed if the adult is of limited capacity, meaning the person can make some, but not all decisions necessary for his or her own care.
A guardianship case usually must be filed in the county where the proposed protected person has been living for the past six months. There are some exceptions to this general rule. Legal advice is strongly recommended when deciding where to file for guardianship over a person who has not been in Nevada for six months or more. See Lawyers & Legal Help for information on where to get legal advice.
There are three different types of guardianship in Nevada. Anyone asking the court to be named a person’s guardian must specify what type of guardianship is sought:
- Guardianship over the Person: this type of guardianship means the guardian is responsible for the well-being and care of the protected person. The guardian will be able to make personal and medical decisions for the person, including healthcare decisions, decisions about where the person will live, and in the case of children, decisions regarding school.
- Guardianship over the Estate: this type of guardianship allows the guardian to make financial decisions for the person. It is important to know that court approval is typically needed to spend or sell any of the person’s assets, even after a guardianship is granted.
- Guardianship over the Person and Estate: this type of guardianship allows the guardian to make personal, medical, and financial decisions for the protected person.
Becoming the guardian over the estate does not give the guardian the absolute power to control the protected person’s assets and finances. The guardian must get the court’s approval before spending any of the person’s money or selling any property, and typically must put the person's money in a “blocked account” where it cannot be accessed without a court order. See Getting Additional Court Orders for more information about asking the court’s permission to spend any of the protected person’s money.
A guardianship over an adult lasts until the adult regains the ability to care for himself, or until the adult passes away.
A guardianship over a child lasts until the child turns 18. If the child will not graduate high school until the age of 19, the child and the guardian can ask that the guardianship continue until the child graduates high school or turns 19, whichever happens first. The request to continue the guardianship must be made at least 2 weeks before the child turns 18.
The guardian or any other relative can ask the court to end a guardianship at any time if they feel the guardianship is no longer needed. See Terminating a Guardianship for more information about this.
There are several options that may avoid the need to have a court-ordered guardianship:
- Six Month Temporary Guardianship (for minor children). Parents can sign a voluntary, six-month temporary guardianship to place children in the care of another person temporarily without going to court. The parents and temporary guardian must sign and notarize the agreement. The temporary guardianship automatically expires six months after all parties have signed the agreement. You can do this yourself by downloading the following form:
- Adoption (for minor children). An attorney is recommended for this legal proceeding, as the requirements can be complicated. Please visit Lawyers & Legal Help to find out where you may be able to find an attorney.
- Durable Power of Attorney. This is a document that gives a person the power to make decisions for another. Please visit Law Libraries to find out where you may be able to get more information about this.
- Durable Power of Attorney for Health Care Decisions. This is a document that gives a person the power to make health care decisions for another if the person becomes disabled or incapacitated. Please visit Law Libraries to find out where you may be able to get more information about this.
- Living Wills. This is a document that directs people what to do if you have an incurable and irreversible condition. This is also known as a “Declaration Designating Another Person to Decide to Withhold or Withdraw Life-Sustaining Treatment.” Please visit Law Libraries to find out where you may be able to get more information about this.
- Living Trust. This is a document that operates during the lifetime of the person on behalf of another person. An attorney should be consulted when creating a living trust. Please visit Lawyers & Legal Help to find out where you may be able to find an attorney.
- Representative Payee. If a person age 60 or older is having trouble managing their finances, they can voluntarily enroll in the Public Guardian’s Representative Payee program. Services include ensuring monthly bills are paid to secure shelter, food, and clothing needs. You can find out more about this program by visiting Representative Payee Services.