How Does a Physician Determine Whether Less Restrictive Alternatives to Guardianship Are Appropriate in Nevada?
When someone seeks the appointment of a guardian for an adult in Nevada, the court must consider whether the proposed protected person can be adequately supported through a less restrictive alternative to guardianship. As part of that process, Nevada law now requires a physician evaluating the proposed protected person to address this issue directly and complete a form entitled “Physician’s Certificate and Needs Assessment”. Under NRS 159.044, before the court makes certain findings regarding the need for a guardianship, the petitioner must provide an assessment completed by a licensed physician. The assessment must identify the person’s limitations in capacity, explain how those limitations affect the person’s ability to maintain his or her safety and basic needs, and include a determination of whether less restrictive alternatives to guardianship are available and sufficient to support the person’s needs.
So, how is a physician supposed to make that determination?
A Diagnosis Alone Does Not Establish the Need for Guardianship
One of the most important concepts in a Nevada guardianship case is that a medical diagnosis alone does not necessarily establish that a guardian is needed. A person may have dementia, Alzheimer’s disease, a developmental disability, a traumatic brain injury, or another condition that affects cognition. But the physician should look beyond the diagnosis and evaluate how the condition actually affects the person’s ability to function.
For example, the physician may consider whether the person can: understand and communicate medical decisions; properly take prescribed medications; recognize when medical treatment is necessary; obtain food, shelter, clothing, and other necessities; understand basic safety risks; communicate needs and preferences; make reasonable decisions concerning living arrangements; and accept assistance from family members, caregivers, or professionals. The focus should therefore be on the person’s functional abilities and limitations, not simply the name of the medical condition.
What Are “Less Restrictive Alternatives” in Nevada?
Nevada law specifically defines less restrictive alternatives to guardianship to include, without limitation: a durable power of attorney for financial matters; a durable power of attorney for health care; and a supported decision-making agreement. NRS 159.0215. The phrase “without limitation” is important. It means that other arrangements may also potentially allow a person to remain safe without requiring the appointment of a guardian. Depending on the circumstances, those arrangements might include assistance from family members, professional caregivers, medication-management services, transportation assistance, automatic payment of bills, assisted living, home-health services, a trust, or another existing support system.
The Physician Should Ask Whether the Alternative Actually Works.
It is not enough to simply identify that a power of attorney or another alternative exists. The more important question is whether the alternative sufficient to meet the proposed protected person’s actual needs? For example, an elderly parent may already have a durable power of attorney naming an adult child as agent. On paper, that may appear to be a less restrictive alternative to guardianship. But the physician’s assessment may reveal that the parent repeatedly refuses necessary medications and cannot recognize dangerous situations. Other types of behaviors that could undermine the use of a power of attorney include situations where the senior leaves the home and becomes lost, repeatedly calls emergency services because of confusion, refuses caregivers access to the home, can’t understand the consequences of refusing medical treatment, otherwise cannot remain safe despite the assistance already being provided. In these situations, the existence of a power of attorney does not necessarily mean that the power of attorney is a sufficient alternative to guardianship.
A Helpful Four-Step Approach for the Physician
A physician completing a Nevada guardianship assessment can generally approach the issue by considering four questions.
1. What Are the Person’s Functional Limitations?
The physician should identify what the proposed protected person can and cannot safely do. Rather than simply stating that the person has “dementia,” the assessment is more helpful when it explains the functional consequences of that condition.
For example:
Does the person understand why medications are necessary?
Can the person remember to take them?
Can the person understand medical recommendations?
Can the person recognize an emergency?
Can the person safely remain alone?
Can the person understand the risks associated with refusing care?
2. What Risks Result From Those Limitations?
The physician should next consider whether the limitations create meaningful risks to the person’s health, safety, or basic needs. Someone who occasionally forgets an appointment presents a very different situation from someone who routinely forgets that the stove is on, wanders from the home, or refuses medically necessary treatment because the person does not understand his or her condition. The more clearly the physician connects the person’s cognitive or physical limitations to an actual safety concern, the more useful the assessment will be to the Nevada guardianship court.
3. What Less Restrictive Alternatives Are Available?
The physician should consider the support system that is currently available or could reasonably be implemented. This may include: a health care power of attorney; a financial power of attorney; an advance health care directive; family assistance; professional caregivers; home-health services; medication supervision; assisted living; a supported decision-making agreement; or another appropriate arrangement.
Don’t assume that the physician is aware of the alternatives. He or she may not personally know whether every legal document exists. For that reason, the petitioner and the guardianship attorney should make sure the physician understands what arrangements are already in place and what alternatives have been attempted.
4. Are Those Alternatives Sufficient?
This may be the most important part of the assessment. The physician should consider whether the existing or proposed alternatives can realistically address the person’s needs. For example, a family member may be willing to assist an elderly parent. But family assistance may not be sufficient if the parent repeatedly refuses access to the home, cannot understand necessary medical care, or is placing himself or herself in dangerous situations.
Similarly, a power of attorney may allow someone else to make certain decisions, but it does not necessarily prevent the person from continuing to make unsafe decisions or refusing necessary assistance. The physician should therefore consider not simply whether an alternative exists, but whether it will actually protect the proposed protected person.
The Physician Is Not Making the Final Legal Decision
The physician plays an important role in the Nevada guardianship process, but the physician does not decide whether a guardianship will ultimately be ordered. That determination belongs to the court. The physician provides the court with medical and functional information concerning the person’s abilities, limitations, risks, and the adequacy of available alternatives.
NRS 159.044 specifically requires the physician’s assessment to determine whether less restrictive alternatives are “available and sufficient to support the needs of the proposed protected person.” The court can then consider the physician’s findings along with the testimony, legal documents, family circumstances, and other evidence presented in the guardianship proceeding.
What Information Should Families Give the Physician?
Because physicians may not know everything about the proposed protected person’s financial, legal, or family circumstances, families should provide the evaluating physician with accurate information concerning the person’s existing support system. That may include copies of or information regarding powers of attorney; advance health care directives; existing caregivers; assisted-living arrangements; medication-management services; and family members who provide assistance.
It is extremely important the physician also be advised about previous attempts to provide care or supervision; incidents involving wandering, falls, exploitation, medication problems, or other safety concerns; and circumstances demonstrating why existing assistance has not been sufficient. This information helps the physician evaluate the person’s situation in context rather than making a determination based solely on a short office examination. Click here for more helpful information regarding information to provide the physician being asked to complete a Physician’s Certificate and Needs Assessment.
Nevada Guardianship Is Intended to Be No More Restrictive Than Necessary
Nevada’s increased emphasis on less restrictive alternatives reflects an important principle of guardianship law: a person should retain as much independence and decision-making authority as reasonably possible. Nevada law now specifically recognizes less restrictive alternatives such as powers of attorney and supported decision-making agreements, and the physician’s assessment required by NRS 159.044 must address whether those alternatives are available and sufficient. For families considering guardianship, this means it is important to document not only why a loved one needs assistance, but also why other available forms of assistance may no longer be enough.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.
Lee A. Drizin, Esq. is the founder of Drizin Law and has practiced in Las Vegas for over three decades. His work focuses on probate, estate planning, trusts, and guardianship, with particular experience handling contested probate and administration matters. A UNLV graduate with a Master of Laws in Taxation from Boston University, Lee has built his career helping Nevada families navigate some of the most difficult times in their lives.
