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Las Vegas, NV Estate Planning & Probate Blog

Friday, March 2, 2018

Guardianship Issues – Awareness & Planning Wins

Getting older and losing one’s independence is a topic that most don’t like to think about, let alone plan for. 

However, it is extremely important to talk about these difficult issues in order protect Senior Citizens from being taken advantage of by unscrupulous third parties.  The number of Americans ages 65 and older is projected to more than double from 46 million today to over 98 million by the year 2060, according to the Population Reference Bureau.   

While legally seniors are considered “vulnerable persons”, this is not to say that every elderly person is vulnerable in the pejorative sense, or to suggest that elderly people cannot make their own decisions.  In fact, many seniors do just fine on their own and remain active and involved with their community well into their “golden years”.  Unfortunately, there are many abuses that are directed towards our elderly population for a variety of reasons- perhaps the individual has diminished capacity, doesn’t have trustworthy family/friends looking out for them, or is overly trusting.  Additionally, many predators seek out senior victims due to their perceived wealth.

Every state has their own guardianship processes and requirements.  An individual may need appointment of a guardian if they are no longer able to manage their affairs, due to illness or loss of mental faculties.  A guardian is an individual appointed by the Court to act as a “protector” and “decision maker” for the protected person (the “Ward”).  These guardians play a vital role in the individual’s life.  A guardian may decide where the individual lives, make healthcare and financial decisions on their behalf.  Ideally, if one needs a guardian, the person appointed as by the Court would be someone nominated by the Ward, i.e. a family member, friend, or trusted advisor.  Nevertheless, there are professional guardians and/or public guardians that the court may appoint in the absence of a relative or preferred individual. 

Now, let’s talk about how this process can negatively affect our senior population.  In some instances, such as this frightening story about Nevadans Rennie and Rudy North reported recently in the New Yorker, elderly people can get lose their rights, seemingly without proper notice or due process of the law.  If the individual/s are said to be in diminished capacity or incapacity, one can file a petition to the Court requesting appointment of a Guardian; if approved, then that guardian can step into the role immediately.  In Rennie and Rudy North’s case, their lives were commandeered by a professional guardian, with whom they had no prior relationship.

This “guardian” then uprooted them from their home and placed both of them at an assisted living facility. Their belongings were sold by this guardian – without the Norths’ consent – and all of this was legal.  The North’s daughter apparently objected to the guardianship to no avail.  It took a criminal investigation into this specific “professional guardian” for her to be removed as the Norths’ guardian.  Ultimately, the couple was left with no assets, as the guardian depleted their savings and sold their assets for monetary gain.  Their chances of recouping their losses are unlikely, at best.  This is just one horrifying example of a long-time and surprising practice of third parties taking advantage of the elderly. 

So… what can be done???  First, spreading awareness of this issue is incredibly important- knowledge is power, especially when it comes to protecting you and your loved one’s rights.  Nevada has recently dealt with this issue by reforming many of the state guardianship laws/procedures in light of rampant abuses.  Secondly, creating and maintaining proper Estate Planning documents is incredibly vital.  Your documents should address personal guardianship preferences, as well as appointment of Health Care Power of Attorney & Financial Power of Attorney Agent(s), among other things.  Ultimately, if proper planning is in place, and consistently updated, there should be little reason for a Court to appoint a third-party guardian. 

It’s also important to note that most professional guardians have good intentions and fulfill their ethical obligation to care for the protected person/s- in fact, many times the perpetrator of financial elder abuse is a family member or other loved one!  A few bad characters should not dilute the good work that many guardians do as a public service.  However, having a say in the way you are cared for in your golden years should not be left to interpretation by anybody but you!

Take an active role in educating yourself & planning for you and your loved one’s futures.  Be proactive & research your state’s guardianship laws and procedures to ensure that that your rights (& the rights of your family!) will be respected & protected.

-by Laura Bown (Law Clerk/J.D. Candidate, 2018, Boyd School of Law, UNLV) with Tiffany Ballenger Floyd, Esq. (Nevada & California Estate Planning Attorney), © 2018, Phillips Ballenger, PLLC


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