Do I need to become the guardian of my disabled or elderly loved one?
Most people have heard the recent news about Casey Kasim and the dispute over who has the legal right to make decisions for him, specifically which family members can see him. Everyone obviously hopes that they never end up in a situation like Mr. Kasim’s. However, such situations are common, and situations involving the care of a loved one are even more common.
When someone you love requires assistance, whether due to disability or age, it is always a stressful and challenging time. Stress often increases as the caregiver role is assumed and questions begin to arise about what rights and limitations the caregiver may have to make decisions on behalf of their loved one. Rights and limitations vary depending on the legal documents your loved one has previously executed and the types of decisions that need to be made.
Many competent adults, at some point in their lives, execute an estate plan. Depending on the type of estate plan you have prepared and who prepares the documents, the estate plan may contain a durable power of attorney for health care decisions and/or a durable power of attorney for financial decisions. A Nevada Durable Power of Attorney for Health Care is designed to allow a competent adult to identify a person who can make medical decisions on the adult’s behalf in the event the adult is unable to make such decisions on his or her own behalf. The Nevada Durable Financial Power of Attorney is designed to appoint someone to make all financial decisions, such as paying bills, on behalf of the competent adult executing the document. Obviously, both documents are very powerful and serious consideration should be given to who is authorized to act as your agent in executing the documents. However, executing these documents allows the designated agent to take extensive action on her behalf and may avoid the need to resort to the appointment of a guardian.
Despite the power of these documents and the potential for such documents to allow those who care for their loved ones to avoid obtaining guardianship of their loved one, in some situations guardianship is still necessary. The most common situation in which guardianship is necessary is when no durable power of attorney, or only one type, has been executed before a loved one is deemed incompetent. In that situation, with no applicable durable power of attorney, and decisions that need to be made, guardianship will be necessary. Also, in some situations, even when durable powers of attorney have been granted, guardianship is necessary, usually based on the circumstances and decisions that need to be addressed. For example, when there are concerns about possible abuse by the designated agent, when a third party requests that a person be appointed as guardian before providing services to your loved one, or when there is a dispute over who can have access to your loved one . one one, as in the case of Mr. Kasim.
If you are in a situation where you need to obtain guardianship of a loved one, the legal process to obtain guardianship will require court action. Obviously, this can be moderately expensive and time consuming. Also, it can be embarrassing for your loved one if they feel they are involved in a legal proceeding to be deemed incompetent and someone appointed to act on their behalf. However, if a guardianship is necessary due to your loved one’s circumstances, the legal process is not so burdensome that it can be avoided at the expense of your loved one’s well-being.