Understanding Guardianships: Voluntary vs. Involuntary

When an individual is unable to care for or make certain decisions for themself, guardianship may become necessary. While Nevada law doesn’t specifically define guardianships as either “voluntary” or “involuntary,” these terms describe situations where a court may appoint a guardian either with or without the consent of the individual over which the guardianship is granted.

If you have questions about the differences between voluntary and involuntary guardianships in Nevada, the family law and guardianship attorneys at Mills & Anderson are here to help. Use our guide below to learn more about how guardianships work, generally, and how the legal aspects of voluntary guardianships and involuntary guardianships differ from each other.

Overview of Nevada Guardianship Law

Before discussing the differences between voluntary and involuntary guardianships, it’s important to first have a general understanding of what guardianship is and when one might be necessary. Below are some important things to keep in mind as you move forward.

What Is Guardianship?

Guardianship is the process by which an individual may be appointed as guardian of another individual who may be incapacitated or otherwise unable to make decisions for or take care of themselves. Under Nevada Revised Statutes (NRS) section 159.0253, a “protected person” is defined as a person for whom proceedings are initiated seeking the appointment of a guardian.

Situations Where a Guardianship Might Be Needed

Generally speaking, adults have the legal right to care for themselves and make decisions on their own behalf as they see fit. In some cases, however, this may not be feasible under the particular circumstances, requiring another individual or entity to step in.

Specifically, guardianship might be appropriate where an individual is incapacitated or of limited capacity such that they are unable to effectively care for their own health and safety without assistance due to mental illness, disability, lack of mental capacity, or other conditions.

Types of Guardianship

When petitioning the court for guardianship, the petitioner must select one of the following 3 types:

Guardianship over the person. The guardian can make decisions regarding the individual’s medical and personal care but not their finances and property.

Guardianship over the estate. The guardian can make financial decisions on behalf of the individual but not personal or medical decisions.

Guardianship over the person and estate. The guardian can make personal, medical, and financial decisions for the individual on their behalf.

It’s important to remember, however, that even after someone is appointed guardian, they will not have complete control. Typically, the guardian must still obtain court approval before spending a protected person’s assets or selling their property, and file an annual report with the court accounting for all guardianship expenditures during the previous year.

Differences Between Voluntary and Involuntary Guardianships

Notably, guardianships in Nevada are not categorized as either “voluntary” or “involuntary.” That said, guardianships can be sought by the prospective protected person (voluntarily) or by a third party who recognizes a need to appoint a guardian to protect the interests of their loved one (involuntarily).

The primary difference between a voluntary and involuntary guardianship is who is making the request. As the name implies, in voluntary guardianship, the protected person voluntarily seeks the guardianship. Under NRS 159.026, a guardian who is appointed as a result of a protected person voluntarily petitioning for their appointment is referred to as a “special guardian.” An individual may request to nominate someone as their guardian by completing a
“Request to Nominate Guardian” form. Notably, however, the individual making the voluntary request must affirm that they have a sufficient level of limited capacity to understand and execute the form.

Conversely, guardianship is considered involuntary when someone other than the protected party seeks guardianship. In either case, guardianship can be a valuable tool to ensure proper protection for individuals who may otherwise be unable to care for themselves.

Factors Considered in Determining Guardianship over a Protected Person

Regardless of whether a guardianship is sought by the protected person or some third party, the court must formally approve any nomination before the guardian will be appointed. Some factors that Nevada courts will consider in determining whether a particular guardianship appointment is appropriate include:

The ability of the nominated person to effectively provide for the needs of the protected person;
Whether the nominated person has a history of alcohol or substance abuse or domestic abuse, neglect, exploitation, isolation, or abandonment of a child, spouse, or other adult;
Whether the nominated person is incapacitated or has a disability;
The relationship between the protected person and the nominated person; and
Whether the nomination or request for appointment was made by the protected person.

Note that this is not an exhaustive list. Thus, be sure to discuss the particular facts surrounding your case with an experienced legal professional before deciding whether and how best to move forward.

Speak with a Guardianship Attorney at Mills & Anderson Today

Guardianship proceedings are crucial to protecting the health and welfare of your loved ones who cannot care for themselves. Thus, when it comes to guardianship proceedings in Nevada, it’s important to put your case in the hands of someone you can trust.

At Mills & Anderson, we are a full-service law firm serving clients in all types of family matters. We pride ourselves on adhering to the highest ethical standards while treating our clients with honesty and integrity, which is especially crucial in guardianship cases.

If you have questions about guardianships in Nevada, call us today to schedule an initial consultation with one of our experienced attorneys and see what our team can do for you.

FAQs

Are the Court Procedures for Involuntary Guardianships and Voluntary Guardianships Different?

Generally speaking, no, the court procedures for obtaining a guardianship are similar, regardless of whether the guardianship is voluntary or involuntary. In either case, the legal process will begin with completing and filing a Petition for Appointment of Guardian and will ultimately require a court order formally appointing a guardian after considering all relevant factors. However, the voluntary nomination or request for a particular guardian by a protected person is a factor that may be taken into consideration by the courts in deciding who to appoint.

Do I Need an Attorney to Assist with Obtaining a Guardianship?

Technically, no. Representation by an attorney is not required to seek guardianship in Nevada. Nevertheless, guardianship proceedings can be complicated and contentious and often have lasting consequences. Thus, having an experienced family law and guardianship lawyer can be invaluable as you pursue your case moving forward.

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About the Author

Byron L. Mills is a partner and managing member of Mills & Anderson, a well-respected family law firm in Nevada. He has become well known in Clark County as a litigator in the local family courts.

A fifth generation native of Nevada, Byron Mills started working at his father’s law firm in 1987 as a runner before becoming a law clerk. Upon graduating law school in 1998, he joined the firm as an associate, then known as Lamond R. Mills & Associates, L.L.C.