I see a lot of questions come up on the law question site Avvo.com where a parent wants to take control over their adult child’s decision making because they are worried they are in a downward spiral. This concern is not enough and I thought I’d try to explain a little about what that means since it comes up so frequently. See the original piece on Avvo.com here or read below.
It comes up every so often that a concerned friend or family member thinks that guardianship would allow them to assist another person in making medical or financial decisions (or both) in their stead. No matter how well meaning the intent, consider carefully whether legal incapacity is at play…
Poor decision making alone is NOT incapacity
You’re worried about your son or daughter and their erratic decision making but even if you could get them to a doctor to be evaluated, chances are the verdict is that people are allowed to make their choices, to have agency, even if that means their choices have negative consequences.
Being manipulated alone is NOT incapacity
If you believe someone you care about is being exploited, don’t just take matters into your own hands and seek guardianship over them. If they are elderly, you can seek the assistance of elder protective services or if they are not of advanced age you can report your concerns to law enforcement. If your mom’s new boyfriend has been shopping a lot with your mom’s money and you’re worried about her that does not automatically mean she lacks capacity to manage her affairs. She may have the capacity for decision making and still decide to stick with the wrong crowd even when there is evidence to the contrary.
Drug or alcohol addiction alone is NOT incapacity
It is not to say that a severe alcohol or drug dependency does not cloud decision making or could result in incapacity (temporary or otherwise) but tread with care. A physician will likely be able to evaluate an individual and decide on which side of the line their mental status falls but as laypeople we cannot assume that because an individual is going to lose everything they’ve worked for because of an addiction, then automatically we can say their disease leaves them unable to manage their affairs. I have had cases, however, in the past, where a guardianship has been established for an individual with, say, an alcohol addiction, and when they did sober up and substantially recover, the guardianship was closed and they were able to handle their own affairs once more.
“Limited capacity” in Nevada for purposes of Guardianship proceedings is defined in NRS 159.022
Nevada Revised Statutes 159.022(1) provides that someone is of limited capacity when “[t]he person is able to make independently some but not all of the decisions necessary for the person’s own care and the management of the person’s property.” It is not a very detailed description, the California Probate Code, for example, goes into much more detail about what is affected when someone lacks capacity to manage their own affairs.
Note: Even someone with limited capacity for some decisions may still have other legal capacity.
For example, someone probably lacking contractual capacity, or the power to understand and therefore appropriately consent to a contract or sign off on a trust) may still have testamentary capacity (the presence of mind to execute a will). This is often why you do not want to go it alone in the legal arena – there is nuance to capacity such that the court may have the ability to take guardianship over someone and know that the will they created six months ago may well have been while under the same mental defect but it is not an automatic decision when it comes to whether such a will is valid. The court has to consider evidence presented about the state of mind of the testator at the time and whether they understood enough about what they were bequeathing and the objects of their bounty, among other things.
NRS 159.019 provides a definition of “Incompetent”
Nevada Revised Statutes 159.019 indicates that an “Incompetent” is “[…]an adult person who, by reason of mental illness, mental deficiency, disease, weakness of mind or any other cause, is unable, without assistance, properly to manage and take care of himself or herself or his or her property, or both. The term includes a person who is mentally incapacitated.”
Physician’s Certificate as the gold standard
A “Certificate of Incapacity” in adult guardianship cases is crucial. Under NRS 159.044, it is a document signed by a physician licensed to practice medicine in Nevada providing that (1) there is a need for a guardian, (2) whether the evaluated party is dangerous to themselves or others, (3) whether they can attend court, if attending would be detrimental, and if they would comprehend the hearing and be able to meaningfully participate, and (4) whether they can live alone or not. Note this is not an exhaustive list, but meant to give you an idea of what needs to be indicated by the professional signing the form. A Proposed Ward will have the right to ask for counsel of their own, and to have another evaluation conducted. Do not take the requirements of NRS 159 lightly as they protect us all from Guardianship being used as a tool of exploitation or control in and of itself.
Be careful with the assistance you do provide someone that may be lacking in capacity
If you think you are helping your grandfather by taking him to an estate planner to draw up end of life plans, be careful that you aren’t later implicated as having taken advantage of the person you believed you were helping. Have your loved one evaluated and use that independent medical information as a guide. Most certainly do not risk their plans being presumed invalid under statutes in Nevada such as the “caregiver statute” that presumes certain estate planning invalid if a caregiver essentially took the testator to the lawyer’s office. It is outside the scope of this brief piece but the bottom line is to proceed with caution, ask for appropriate assistance, and do not assume that because you feel a person is not acting as they should that you can rend their authority to make their own decisions away from them.
Nevada Aging and Disability Services Division: (702) 486-3545
Clark County Public Guardian: (702) 455-4332
Washoe County Public Guardian: (775) 674-8800