In our legal practice, we are often asked basic questions about guardianship in Nevada. Here are some answers to these fundamental guardianship questions:
Are issues relating to persons who lack capacity dealt with in a special Court or as part of the general Court system?
In Nevada issues of competency or lack of capacity are addressed in the District Court, which is the court of general jurisdiction where the incapacitated individual resides. Depending on the population of the county of residence, the District Court may have a Family Court Division. Additionally, such family courts may have a specific Guardianship Court wherein a Guardianship Commissioner sitting as a special master—pursuant to Nevada Rule of Civil Procedure 53 (NRCP 53)—will hear matters pertaining to capacity and guardianship.
Can an adult delegate authority to make decisions on their behalf using a Power of Attorney, to operate if they lose capacity in the future?
In Nevada a competent individual may execute a Durable Power of Attorney and designate an agent to make health care and/or financial decisions on his or her behalf in the event of subsequent incapacity. Such power of attorney is presumed to be durable, or to survive the subsequent incapacity of the principle, unless specified otherwise. See NRS 162A.210
What happens where an individual loses capacity but has not executed a valid Power of Attorney covering this situation?
In instances where a valid power of attorney has not been executed and an individual loses capacity due to advanced age, illness, and accident or otherwise, a guardianship of the person, and possibly of the person’s estate, may be required. If an individual is appointed as guardian of a ward, the guardian will have the ability to make health care, housing, rehabilitation, treatment and other decisions relating to the health and maintenance of the ward’s person. If a person is appointed as guardian of the estate of a ward, the guardian has authority to manage, invest, sell, lease, or enter into other suitable transactions with respect to the ward’s personal and real property. A guardian is a fiduciary and is bound by fiduciary duties and may need court pre-approval for certain transactions.
How is capacity assessed?
Capacity is assessed by at least one physician, psychologist or psychiatrist, as reflected in a certificate of incompetency. If there is a question as to capacity or a contested finding of capacity the court may order that a second evaluation be performed. In extreme cases the matter can be resolved with an evidentiary hearing. See NRS 162A.220
Will a Power of Attorney executed outside NEVADA which delegates authority to make decisions on behalf of an individual who lacks capacity be recognized in NEVADA?
A power of attorney executed in another jurisdiction will be honored in Nevada if the foreign jurisdiction power of attorney was valid in the State where it was executed. See NRS 162A.230
Where can I find more information about basic Nevada guardianship?
You can visit our firm’s guardianship page by clicking here or the Clark County Guardianship Court’s website by clicking here. If you have any further questions relating to the fundamentals of Nevada guardianship, please contact our office for a free one-half hour consultation.