GUARDIANSHIP AND CONSERVATORSHIP?
Hello and welcome to the trusted podcast. I’m your host, Blake Johnson, and we’re happy to have you today. And we’re, we’re, uh, the trusted podcast. We always talk about all things that involve trusting others, especially attorneys. And today we’ve got a great program for you. We’re going to talk about guardianships, sometimes referred to as conservatorship, but basically the idea of how do you become a guardian of a person, uh, particularly we’re going to be focusing on guardian of being, uh, being a guardian of an adult. So typically this is the situation where mom and dad started getting dementia or Alzheimer’s and, uh, aren’t able to fully function. So we need to get an a guardian appointed to, uh, make sure they’re taken care of properly and that they’re not, Trust Attorney Las Vegas, you know, just wasting their money or I’m going to be, uh, you know, on their own at home, it really not taken care of.
So let’s just jump right into it. And, uh, what is the guardianship? I said in stiff States have different names for it. Some it’s guardianship, some it’s conservatorship. But the idea being is you’re appointed by the court to be the guardian or the fiduciary or the person who has the ability to make decisions on behalf of another. Now, when it’s a child, that’s why it’s called a guardian. You know, your parent or a guardian because they have the ability to make decisions for the child because they’re, they’re not of age, they’re under 18. So there always has to be at least one guardian. When you, when you’re a parent, you are automatically the guardian of your children. You don’t have to do anything special in court to make that happen. But if it’s, you know, you took, uh, over for kids who were, um, you know, your, your siblings, kids and your sibling died or something like that, then you’d have to be appointed as their guardian to be able to do, make those decisions, especially medical, um, decisions for them.
Now, on the adult side, typically, um, you have to be incapacitated fully before you can have this done. But you may, uh, if the, the person who, um, we call them the ward, the person who is having the struggles, maybe a doctor won’t declare them in competent, but they realize they have trouble and they want to be, have a guardian appointed for them. They can petition the court and, um, the judge can granted if it’s the consent of the party who it’s for. But that’s not typically the case. Usually it’s the case where it’s much further down the road and, and, uh, you know, we’ve got mom or dad, severe Alzheimer’s, severe dementia. Um, they may have caused an accident. They may have gotten out of the house, gotten lost, um, may have been swindled by somebody, didn’t know that they’ve ordered. I had a client who ordered 15 of the same printers on Amazon.
Um, so, you know, those are the kinds of things that we’re dealing with. Now, if you’ve done your estate planning properly and you’ve thought ahead of times, you most likely won’t need to have a guardianship, a court hearing or a guardian appointed because you’ve set up your power of attorney. You also have your living trust, which owns all the assets Trust Attorney Las Vegas. And so if we have two doctors that can declare you incompetent, then, uh, the person that you appointed as your successor trustee, and as your power of attorney can use those, uh, doctor’s notes to step in, take over the finances. That’s what the trust side is. If everything’s in the trust. And then they also have a medical power training so they can help make your medical decisions for you. And that’s the ideal situation. We don’t have to get a court involved. It’s not messy.
It’s very clear who’s takes over and we, all we need is those doctor’s notes. So if it gets to that point, that’s pretty easy to, to show. Now, um, the other thing you gotta gotta worry about is, um, on the finance side, making sure that you trusted somebody who’s actually going to, uh, follow your duties, have a fiduciary duty and responsibility to carry out what you really want. But let’s say you didn’t do your plan, you didn’t do your state planning or your trust, and you need to, uh, help mom and dad out. And, uh, you don’t have that power of attorney. So what do you do? Well, you’re going to have to file with the court to appoint a guardian and you can either decide to do that by yourself or you can hire Trust Attorney Las Vegas to do it. Uh, personally, I would ha, I would recommend hiring an attorney.
I don’t do guardianships, so it’s not a plug in for me by any means. Um, but it is a complicated process, especially here in Nevada who had some issues with guardians in the past. So the, the laws have gotten a lot more strict on how that’s supposed to hand it be handled. Uh, but because of that, uh, most attorneys stay away from guardianships because it has become very difficult to get it done. So that being said, you can’t handle it on your own if you want to, but if you can find a really good attorney that can help you with that guardianship, I would highly recommend it. What they’re going to do is they’re going to file with the court to be appointed to have you pointed as guardian, you’re going to have a hearing and you gotta submit the doctor’s note saying that they’re incapacitated.
Any other evidence that you have that’s going to go along with that. And then when you go, you also have to notice all the other, you have to notice the adult themselves. So they have to be aware of it. You have to notice any relatives so that they have the opportunity to come and say, yeah, you’re probably not the best person to be the guardian or no, I want to be the guardian as well. Um, or make it co-guardians whatever the cases. And that’s the, that hearing isn’t the time that they, they have to contest that. So that’s why you have to give them notice of it. And then they, you come before the judge. If there’s enough evidence and it’s clear they’ll grant the guardianship, then, uh, if there’s anybody contesting or there’s evidence that’s conflicting, they may set a trial to hear more evidence and figure out what really is going on.
And the state will, or the court will always appoint an attorney to represent the PR, the, the adult who is incapacitated or is alleged to be incapacitated so that they always have a fair shake as well. Um, so that they, uh, not attorney represents them and they will make, do what’s ever in the best interest of, of their client. So just be aware of that Trust Attorney Las Vegas. There is going to be another attorney involved in the, the age or the adult who is supposedly capacity does have to appear at the court house unless there’s doctor’s letter saying that it’s medically impossible or you know, not recommended that they attend the court and travel at that time. And then once you are appointed guardian, uh, it’s not just done. You don’t have that papers and you’re good for forever. You actually have to go back to the court and account for your actions, uh, on a pretty regular, regular basis because there’s a tendency for, um, people to abuse their powers because they have access to everybody else’s money.
Mom and dad’s money. What are they doing with it? Are they actually using it for mom and dad’s care or are they using it for their own personal bank account? And so you have to account show all the transactions that were done, what they were for the receipts if is not keeping the receipts is not a bad idea. Um, so that way when you can count and if there’s, if the question anything, you can always provide the evidence that you did handle things the right way and that’s going to be ongoing regular basis at least annually until the person dies. And at that point then you can do your final accounting and terminate the guardianship. Or if for some reason it’s a, it’s an illness where the person does eventually get better, very unlikely, but you can terminate guardianships as well. Or if you want to have somebody else be the guardian, um, cause you just can’t handle it anymore, you can terminate your guardianship and have another guardian appointed.
But that all has to be done through the court. You contrast that with, uh, you know, your estate planning documents, setting up a power of attorney, setting up the trust. You do that ahead of time Trust Attorney Las Vegas, you do it once and it’s all, it’s all done now. There isn’t the oversight of the court making sure that you’re accounting correctly and doing things the right way. But you do have a fiduciary duty as a trustee and as a power of attorney to do those things. But the nice thing is we don’t have to get the court involved. So you’re saving a ton of money, not having to go back to court over and over again. You’re saving time if you know time is of the essence when you know when somebody comes in capacity, which is usually pretty much always the case, you have those doctor’s notes, you can start acting and doing things for their benefit immediately instead of having to wait, you know, a month or two to get a court hearing to get that taken care of.
And courts, right now, especially here in Clark County, Southern Nevada, they are super backed up and so it’s very difficult to get a hearing date, anything sooner than a month out if you’re lucky. So that’s it for conservative conservatorship, guardianship, power of attorneys, whatever you want to call it. That’s how they relate together. Once again, plan ahead if you can. If not, there are options and that’s the way you can handle it. So thanks for listening in today Trust Attorney Las Vegas. As always, if you can like and subscribe, we’d appreciate that and leave us a review and let us know what you want to hear in the future and we’ll talk to you next time.