When minors and adults with serious disabilities need help caring for themselves, guardians can be appointed. This is most common for children when the parents pass away, but there are plenty of reasons to appoint a guardian, such as the parents’ temporary incapacity after an accident.
Our lawyers can help parents set up plans for guardianship in a will, help family members obtain guardianship over disabled loved ones, and help you seek guardianship over a child or adult relative whose current caregivers are failing them.
For a free case review, call Flake & Flake’s guardianship lawyers at (702) 829-5731 today.
What is a Guardianship?
A guardianship gives a responsible person the power to make decisions for someone else. This usually covers all aspects of the ward’s life, such as
- Economic decisions (allowances, purchases)
- Personal decisions (housing, school)
- Medical decisions (what medication they use, whether they can obtain desired procedures).
These are used for children – who are not legally able to care for themselves and make their own decisions yet – as well as for adults with significant mental health or medical conditions that mean they cannot care for themselves.
What is a Guardianship vs. a Conservatorship?
These terms mean the same thing, legally speaking. Colloquially, people may prefer to use guardianship for minors and conservatorship for adults, but they mean the same thing under Nevada law.
Who is Eligible to Be a Guardian?
Any competent adult can be a guardian. Here, competence means that they are of sound mind and are physically and mentally able to make decisions for themselves and others. There are some other restrictions as well.
Preference for Family Decisions
Generally, courts prefer to keep guardians in the family. For example, a guardian for an orphaned minor is typically an adult sibling, grandparent, or aunts/uncle.
For guardianship over an adult, the first choice is usually their spouse, adult children, or parents, then relatives they have lived with in the past or relatives currently acting as caregivers, then adult siblings, grandparents, or aunts/uncles.
Generally speaking, someone the family nominates or chooses will be given preference over someone unrelated or coming from outside the family.
No Felonies
Guardians cannot be appointed if they have felonies, except in some cases where the family consents even knowing about the felony. Usually, abuse against the intended ward blocks you from being a guardian, even with the family’s permission.
Who is Eligible for Guardianship?
The rules are a bit different for minors and adults:
Minors
Typically, all minors need guardians unless they have been emancipated after age 16. However, they do not need a guardian if they have parents. This means guardianship is typically reserved for cases where
- Both parents have passed away.
- Only one parent has custody and passes away, but the other parent is available to become guardian or take custody.
- All parents have become incapacitated (e.g., in a coma), disabled (e.g., after a serious injury), or otherwise unable to carry out their responsibilities (e.g., they are stuck overseas).
- Both parents are in prison.
- Family members determine that the parents are not suitable caregivers and want to have the children taken away from the parents.
Adults
Taking away an adult’s freedom with a guardianship is a big limit on the rights and freedoms they would otherwise have. Courts can only appoint a guardian if the ward is “incompetent” and cannot make decisions for or support themselves.
The ward is usually entitled to get a guardianship lawyer or have one appointed to challenge this claim. The court usually needs medical and mental health evaluations before it can make final determinations.
Who Decides Guardianship?
Guardianship is decided by the court. The judge can take the family’s wishes and requests into consideration – as well as requests in a will – but the child or adult ward’s best interests are always at the core of the judge’s decision.
For minors 14 or older, the minor’s choice of guardian is typically taken into account.
Do You Need the Ward’s Consent?
No. Even with consent, the court still needs to make the final determinations about a child’s best interests or an adult’s incapacity.
Minors
Minors need a guardian in most cases. This means their consent is never needed. However, courts will take their choice of guardian into account, especially if they are 14 or older.
A minor may alternatively seek “emancipation,” which allows a minor aged 16 or 17 to be treated as if they are already an adult. This usually requires them to live apart from their parents and show they can take care of themselves or that they are married and their spouse will support them.
Adults
Adult wards might consent to guardianship, especially if they are newly turning 18 and have been planning on having a family member activate a guardianship for them when they become adults.
Even with consent, the court still needs to find the adult ward incompetent. They cannot skip this step just because there is consent.
Can You Appoint a Guardian in a Will?
When planning your will, you should generally include your wishes for your children’s care and support. This could mean putting money in trust as well as choosing a guardian.
Choices in a Will Are Not Absolutely Binding
The court is responsible for the final decision, but they will typically take your choice into account.
What if the Appointed Guardian Refuses or Can’t Do it?
You should get the intended guardian’s permission before naming them, or else they might say no. In case other circumstances prevent them from taking over, it is also good to put a backup option.
If none of your choices can do it, the court chooses the guardian.
What if Only One Parent Passes Away?
If both parents had custody when they passed away, the named guardian usually takes over. If only one parent passed, but the other also has custody, they usually take over full custody.
If temporary guardianship is needed while the surviving spouse recovers from injuries, your chosen guardian can take temporary guardianship.
If the parent who survived did not have custody, the surviving parent is the first choice unless the custodial parent appointed someone else or this parent previously lost custody for a good reason (e.g., abuse).
Can You Appoint Someone Outside the Family?
Yes. You can choose a friend, trusted colleague, or parent-like figure to be your child’s guardian, even if they are not related by blood or marriage.
Your family might challenge this, but the court will often go with your chosen guardian if that is the best fit.
Call Our Guardianship Lawyers in Henderson Today
Call (702) 829-5731 for a free case review with Flake & Flake’s guardianship lawyers today.
