Why Nevada Courts Consider Less Restrictive Alternatives Before Appointing a Guardian
When an aging parent or another loved one begins having difficulty making decisions, family members may believe that a guardianship is the obvious solution. In Nevada, however, a court will want to know whether there is a less restrictive way to protect the person before taking away important decision-making rights through a guardianship.
What Is a “Less Restrictive Alternative”?
A guardianship can give another person significant authority to make decisions regarding someone’s health care, living arrangements, finances, or property. Because those powers can substantially limit a person’s independence, Nevada law requires consideration of alternatives that may accomplish the same protective purpose without a guardianship. Nevada law specifically identifies several possible alternatives, including: (a) a durable power of attorney for financial matters; (b) a durable power of attorney for health care; and (c) a supported decision-making agreement.
These are not necessarily the only alternatives that may be considered. The important question is whether there is another practical arrangement that can adequately protect the person while allowing him or her to retain greater independence. NRS 159.0215.
The Court Is Looking for Necessity — Not Convenience.
It is not enough to show that appointing a guardian would make things easier for the family. The petitioner has the burden of proving by clear and convincing evidence that the appointment of a guardian is necessary. NRS 159.055. For example, suppose an elderly parent is having difficulty paying bills. If that parent previously signed a valid financial power of attorney and the agent can properly manage the parent’s finances, a guardianship of the estate may not be necessary. Likewise, if valid health care planning documents allow an appropriate person to make necessary medical decisions, the court may ask why a guardianship of the person is also required. The issue is whether this person’s needs can be adequately addressed through something less restrictive alternative.
Nevada Now Requires a Physician’s Assessment
Nevada law also requires additional consideration of this issue before the court appoints a guardian. Under NRS 159.044, the petitioner must provide the court with an assessment completed by a licensed physician. The assessment must address the proposed protected person’s limitations and how those limitations affect the person’s ability to maintain his or her safety and basic needs. Importantly, the physician’s assessment must also address whether less restrictive alternatives to guardianship are available and sufficient to meet the person’s needs. This means the question of alternatives should be addressed before the guardianship hearing—not for the first time when the judge asks about it. You shouldn’t just give the physician a form to complete. Rather, you should provide the doctor a clear picture of the problem with specific examples that may demonstrate how alternates to guardianship may not be appropriate. Click here for further recommendations regarding information that should be provided.
Planning Ahead Can Avoid the Need for Guardianship
One of the reasons estate planning documents such as powers of attorney and advance health care directives are so important is that they may allow trusted family members to assist when someone later becomes unable to manage his or her affairs. When those documents are properly prepared before incapacity occurs, they can sometimes eliminate the need for a guardianship proceeding altogether. Unfortunately, once a person has lost the legal capacity necessary to execute those documents, it may be too late to create them. At that point, guardianship may become the only practical means of providing the protection the person needs.
The Bottom Line
A Nevada guardianship should generally be viewed as a protective measure used when less restrictive solutions are not sufficient. Before seeking appointment of a guardian, families should be prepared to answer three basic questions:
1.What decisions or activities can the person no longer safely handle?
2.What less restrictive alternatives have been considered or are already in place?
3.Why aren’t those alternatives sufficient to protect the person?
Being able to answer those questions helps demonstrate to the court that guardianship is being requested because it is genuinely necessary—not simply because it is the easiest solution.
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.
