“Guardianship” is when one person is responsible for another person’s assets, money spending, and care. Legal guardianship can be put in place for minors whose parents have died, but they can also be used for adults – such as a grandparent or disabled sibling – who cannot take care of themselves.
Planning for guardianship of a child under 18 is often an essential part of estate planning, as is planning for the special needs of disabled family members you care for. Outside the estate planning context, we can also help people petition for guardianship over a family member they think needs help or additional care.
For help with your case, call Flake & Flake’s guardianship attorneys at (702) 829-5731 today.
Guardianship for a Child
Guardianship is often provided for in a parent’s will, so that they can give guardianship of their children to a trusted sibling, grandparent, aunt/uncle, or other loved one if they pass away suddenly. Planning for this is important.
Guardianships can also be taken on in other cases.
Setting Up Guardianship in a Will
If you have children, your will should include instructions for what happens to them if you pass away. If your children turn 18, they can legally be on their own – but most minor children still need a guardian.
In your will, you can name who will take over guardianship if you and your spouse both die, such as
- Your parents
- One of your siblings
- Your aunt/uncle
- An adult child (taking on guardianship of your younger children).
Providing Money in Trust
You can also set up money and assets in a trust to provide support for your children until they come of age. You can name a trustee – whether that is the same person as the guardian or someone else – to oversee their finances and pay for things like
- Housing
- Clothing and other needs
- School supplies
- College
- A car
You can also set up this money to go to your child outright when they reach a certain age – such as 18 or 25 – or when they meet life milestones – like graduating college or getting married.
Petitioning for Guardianship of a Loved One
If you have a cousin, niece/nephew, or other young family member that you believe is not getting proper care from their parents, you may be able to petition the court for guardianship. This would allow you to take over their care without having to affirmatively adopt them.
This is not always available, since a parent’s rights often beat out another loved one’s rights, but courts are always interested in the best interests of the child.
Guardianship for an Adult
If you have an adult loved one who is unable to care for themselves, a guardianship might be needed.
Petition for Guardianship
In Nevada, you have to petition the court if you want guardianship over another adult. This takes away a lot of the ward’s freedom, so courts do not grant guardianships without serious proof that the guardianship is needed.
The individual you seek guardianship over can go to court and fight this, and judges will often speak directly to the potential ward when deciding whether or not they need a guardian.
Requirements to Be a Guardian
To petition the court to let you be a guardian, you must be
- Over 18
- Mentally competent
- A Nevada resident (or use a registered agent in Nevada)
- Free of felony convictions, with some exceptions for judicial approval and consent by close family.
Courts give preference to closer family members, guardians selected by the ward’s relatives, or a guardian selected by a ward over 14. They also prefer spouses, adult children, parents, and other close family over more distant family.
Requirements to Allow Guardianship
Courts will only grant a guardianship over someone who is not mentally competent to take care of their own finances. This often means showing proof of
- A serious mental health condition
- A developmental disorder (e.g., Down syndrome)
- A neurodegenerative disease (e.g., Alzheimer’s or dementia)
- Some other physical or mental issue.
Estate Planning for a Preexisting Guardianship
If you have children, you can choose in your will who to give guardianship to when you pass away. The same is not always available when you have guardianship over an adult – whether they are your child or not.
Usually, this needs to be set up through the courts, but you can put statements in your will expressing your wishes about who should take over as their next guardian. You can also set up things like trusts or special needs trusts to financially care for your ward after you pass.
Estate Planning Considerations
If there is someone you want to provide for in your will after you pass, but they are subject to a guardianship or other complex situation, you may need special estate planning considerations.
Giving Inheritance to Someone in a Guardianship
If you are giving part of your estate to a loved one who is under a guardianship, you might not want to give it to them outright. If they have their assets controlled by a guardian, they might not be able to manage the funds you give them, and the guardian would get control instead.
Giving them money might also hurt eligibility for programs like Social Security Disability unless you put them in trust.
Keeping Assets in Trust
If you give the money to a trust instead, then you can name a trustee to manage the assets and pay money to your loved one. Your loved one would then be the beneficiary of the trust.
Protecting Funds
This can help protect the money and assets. Your loved one under a guardianship might not be able to manage the money themselves, so putting it in trust helps protect the money.
You may also want to protect the money from being accessed by their guardian, in which case you can name someone else you trust as the trustee.
Special Needs Trusts
For a disabled child, grandchild, or ward under age 65, you can set up or pass part of your estate into a special needs trust. This can be administered to benefit the disabled loved one without counting the money toward asset or income limits for Social Security and other programs.
This can let you give them part of your inheritance without hurting their eligibility for programs like Social Security Disability or putting all the money in the hands of their guardian.
FAQs for Guardianship Cases in Las Vegas
Can Guardianships Be Temporary
If an adult family member becomes incapacitated – e.g., after a serious injury – and cannot manage their own finances, you may be able to petition for a guardianship temporarily until they recover.
This is often helpful if they had no living will or power of attorney document sin place to plan for their incapacity.
How Do You Know if Someone Needs a Guardianship?
Guardianships are complicated, and they are only granted when the potential ward is profoundly unable care for themselves. A “rough patch” in someone’s life might not be enough, so talk to a lawyer about the situation to see if a guardianship is right in your case.
Should You Adopt Instead?
A guardianship puts you in charge of a person’s assets and care without actually adopting them. However, adoption might be better in some cases – especially with regard to young children.
Should You Use a Trust or a Guardianship?
You may be able to accomplish the goals of financially supporting a loved one without simply giving them money outright by using a trust. A trust is far easier to set up and does not need court approval like a guardianship would, but it does not give you control of their existing assets.
How is a Guardianship Different from a Conservatorship?
Conservatorship and guardianship are essentially interchangeable terms when we are talking about care for an adult. Sometimes the term conservatorship is used for adults to distinguish it from a child’s guardian.
Call Our Las Vegas Guardianship Lawyers Today
For help with your case, call Flake & Flake’s guardianship lawyers at (702) 829-5731.
