[Rev. 6/29/2024 2:27:32 PM--2023]
STATEWIDE RULES FOR GUARDIANSHIP
APPROVED BY THE SUPREME COURT OF NEVADA
____________
Effective October 10, 2018
and Including
Amendments Through September 29, 2023
IN THE SUPREME COURT OF THE STATE OF NEVADA
In the Matter of the Creation of a Commission to Study the Creation and Administration of Guardianships.
ADKT 507
ORDER APPROVING STATEWIDE RULES FOR GUARDIANSHIP
________
Whereas, on August 2, 2017, this court ordered the creation of a permanent Guardianship Commission to study and make recommendations in specific areas enumerated in the court’s order and directed the Commission to provide a report of its recommendations to the court; and
Whereas, on May 30, 2018, the Honorable James Hardesty, Justice, filed the First Interim Report of the Guardianship Commission in which the Commission recommended the adoption of statewide rules for Guardianship; and
Whereas, this court solicited public comment on the First Interim Report and held a public hearing in this matter on July 18, 2018; and
Whereas, it appears that approval of the proposed statewide rules for Guardianship is warranted; accordingly,
It Is Hereby Ordered that the statewide rules for Guardianship shall be approved and shall read as set forth in Exhibit A.
It Is Further Ordered that the statewide rules for Guardianship shall be effective 30 days from the date of this order. The clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rules for Guardianship.
Dated this 10th day of September, 2018.
BY THE COURT
Michael L. Douglas, Chief Justice
Michael A. Cherry Mark Gibbons
Associate Justice Associate Justice
Kristina Pickering James W. Hardesty
Associate Justice Associate Justice
Ron D. Parraguirre Lidia S. Stiglich
Associate Justice Associate Justice
STATEWIDE RULES FOR GUARDIANSHIP
STATEWIDE RULES FOR GUARDIANSHIP
A. Scope of rules in general. These rules govern the procedure in the district courts in all guardianship actions.
B. Proper person litigants. When a proposed guardian or guardian is not represented by an attorney, the proposed guardian or guardian must comply with these rules.
[Added; effective October 10, 2018.]
Rule 2. Commencement of action. A guardianship action is commenced by filing a petition for appointment as temporary, general, or special guardian of the person, estate, or person and estate.
[Added; effective October 10, 2018.]
Rule 3. Rule regarding service of citations. Where a statute specifies the person or entity that shall prepare, issue, and/or serve a citation/notice, that statute shall control. In all other cases, the petitioner of the particular petition at issue shall prepare the citation/notice. If a citation is required, the petitioner shall have it issued by the clerk of the court. The petitioner shall then serve a copy of the citation/notice, and where applicable the petition or other required documents, and shall file proof of such service with the court. If a particular statute requires the manner in which service shall be made, service shall be made in compliance with that statute. Otherwise, service shall be made as required by NRCP 4.
[Added; effective October 10, 2018.]
Rule 4. Guardians appointed without citation. Where the court appoints a guardian for the proposed protected minor without issuing a citation on the basis the petitioner and proposed guardian is a parent who has sole legal and physical custody of the proposed protected minor:
A. The court shall conduct a hearing on the appointment of such a guardian;
B. Upon indicia that the minor does not consent to the guardianship, the matter shall be set for a full hearing with citation notice; and
C. The provisions of this section only apply where the petitioner is a parent with sole legal and sole physical custody of the proposed protected minor and is petitioning as the sole proposed guardian.
[Added; effective October 10, 2018.]
Rule 5. Ex parte communication.
A. In order to carry out the court’s oversight and enforcement of compliance in guardianship proceedings, communications which might otherwise be considered ex parte communications under the Nevada Code of Judicial Conduct, Rule 2.9, may be received and reviewed by the court under the provisions of this rule if such communications raise a significant concern about a guardian’s compliance with his or her statutory duties and responsibilities, or the protected person’s welfare.
B. In response to such communication, the court may:
1. Review the court file and take any action that is supported by the record, including but not limited to ordering a report on the protected person’s condition, an inventory, an accounting, or any other filing which is outstanding;
2. Appoint a guardian ad litem;
3. Appoint an attorney ad litem;
4. Appoint an investigator pursuant to NRS 159.146;
5. Appoint a financial forensic specialist;
6. Refer the matter to the appropriate law enforcement agency;
7. Refer the matter to the appropriate licensing agency;
8. Refer the matter to appropriate agencies, including but not limited to Child Protective Services or Elder Protective Services;
9. Set a hearing regarding the communication, requiring the parties’ attendance, and/or require a response from the guardian concerning the issues raised by the communication; or
10. Decline to take further action on the communication, with or without replying to the person initiating the communication or returning any written communication received from such person.
C. If the communication does not raise significant concerns regarding the guardian’s compliance or the protected person’s welfare and would otherwise be prohibited ex parte communication under the Nevada Code of Judicial Conduct, Rule 2.9, the court shall:
1. Return the written communication to the sender, if known; and
2. Disclose notice of the communication to the guardian, guardian ad litem, the protected person, the protected person’s attorney, and all parties of record and their attorneys.
D. The court shall disclose any ex parte communication reviewed under subsection A of this rule, and any action taken by the court under subsection B, to the guardian, guardian ad litem, the protected person, the protected person’s attorney, and all parties of record and their attorneys.
[Added; effective October 10, 2018.]
Rule 6. Initial guardianship plan.
A. Initial guardianship plan in general. The proposed guardian may file an initial guardianship plan not later than 60 days after the date of appointment as general or special guardian of the person, estate, or person and estate or, if necessary, upon such further time as the court may allow.
B. Guardian of the person. The initial guardianship plan shall set forth objectives for meeting the goals, needs, and preferences of the person, and may:
1. Emphasize a person-centered philosophy;
2. Address the residential setting or facility best suited for the needs of the person and, if applicable, the place or proposed place of residence;
3. Address medical, psychiatric, social, vocational, educational, training, and recreational goals, needs, and preferences of the person; and
4. Address, to the extent known or discoverable, whether the person’s finances and budget are sufficient or flexible to meet the person’s known and reasonably anticipated needs.
C. Guardian of the estate. The initial guardianship plan shall set forth a financial plan and budget for the management of income and assets that corresponds with the care plan for the person and addresses the goals, needs, and preferences of the person, and may:
1. Emphasize a person-centered philosophy;
2. Maintain the goal of prudently managing, but not necessarily eliminating, risks;
3. Address available assets and income;
4. Address known and reasonably anticipated expenses; and
5. Address public and insurance benefits for which the person is eligible.
D. Attestation. The initial guardianship plan shall contain an attestation that the proposed guardian or guardian has consulted with the person to the extent possible and has considered the person’s wishes consistent with the rights retained by the person under guardianship and the provisions of the initial guardianship plan.
[Added; effective October 10, 2018; amended; effective December 9, 2019.]
Rule 7. Attorney fee petitions. A petition for attorney fees, as required by NRS 159.344(4), shall be served on all those entitled to notice pursuant to NRS 159.034 and NRS 159.047. Such notice may be served by first-class mail.
[Added; effective December 9, 2019.]
Rule 8. Guardian ad litem for protected person or proposed protected person.
A. This rule applies to any guardian ad litem appointed pursuant to NRS 159.0455 and NRS 159A.0455.
B. The guardian ad litem shall zealously advocate for the best interest of the protected person or proposed protected person in a manner that will enable the court to determine the action that will be the least restrictive and in the best interest of the protected person or proposed protected person.
C. A guardian ad litem is an officer of the court and a representative of the protected person or proposed protected person and is not a party to the case.
D. A guardian ad litem may be appointed if the protected person or proposed protected person will benefit from the appointment or the services of the guardian ad litem or if the appointment will be beneficial in determining the best interest of the protected person or proposed protected person.
E. The order appointing the guardian ad litem shall set forth with specificity the duties of the guardian ad litem and shall identify the issues that the guardian ad litem is directed to address. The guardian ad litem shall address only the issues identified in the appointing order absent an additional order from the court. The order appointing the guardian ad litem shall authorize the guardian ad litem access to all relevant documents and information concerning the protected person or proposed protected person, including but not limited to private, confidential, financial, and Health Insurance Portability and Accountability Act-protected (HIPAA) information and documents.
F. The guardian ad litem shall not have authority to waive any of the protected person’s or proposed protected person’s due process rights or protections, including, without limitation, the protected person’s or proposed protected person’s right to counsel, right to oppose the guardianship, right to oppose the choice of guardian, right to attend hearings, and right to object to any action or proposed action by the guardian.
G. The guardian ad litem shall advocate for the best interest of the protected person or proposed protected person based on admissible evidence available to the guardian ad litem. The guardian ad litem shall conduct independent investigation and assessment of the facts to carry out the directives of the appointing order and may submit recommendations to the court that are based on admissible evidence. The guardian ad litem shall not be a witness and shall not testify or be cross-examined. The guardian ad litem shall not be subject to a subpoena, except to the extent an attorney representing the protected person or proposed protected person would be subject to a subpoena.
H. A guardian ad litem may be a trained volunteer from a court-approved advocate program, an attorney, or any other person that the court finds has appropriate training and experience.
I. If the guardian ad litem is a trained volunteer from a court-approved volunteer advocate program or an attorney providing services as a guardian ad litem pro bono, the appointing order shall state that fact and state that the guardian ad litem is not seeking compensation. If the guardian ad litem is not a volunteer and will seek compensation in the case, the appointing order shall state the hourly rate to be charged by the guardian ad litem and may limit the hours that may be charged by the guardian ad litem, absent further order of the court.
J. A guardian ad litem that seeks compensation for the services provided is only entitled to compensation upon compliance with NRS 159.344 et al., and the request for payment, whether or not payment is to be from the guardianship estate or from any third party, shall be subject to the requirements and analysis as set forth in NRS 159.344.
K. An attorney that serves as a guardian ad litem is bound by the Nevada Rules of Professional Conduct to the extent those rules are applicable.
L. A guardian ad litem shall not communicate with any party represented by counsel outside the presence of the party’s attorney without first obtaining the attorney’s consent.
M. The guardian ad litem shall provide a copy to all parties of any written report of the guardian ad litem that is filed with the court.
N. The role of the guardian ad litem is separate and distinct from the role of an attorney for a protected person or proposed protected person appointed pursuant to NRS 159.0485 and separate and distinct from an investigator appointed pursuant to NRS 159.046. A guardian ad litem for a protected person or proposed protected person shall not serve as an attorney for a protected person or proposed protected person, as an attorney for a guardian(s) or as an investigator in the same case or in a related matter.
O. The guardian ad litem shall ensure the rights set forth in the Protected Persons Bill of Rights are upheld and the guardian ad litem shall immediately report to the court any transgressions of said rights.
P. A guardian ad litem who represents siblings or spouses in a guardianship(s) shall be alert to potential conflicts and request that the court appoint a separate guardian ad litem in the event that a conflict or potential conflict should arise.
[Added; effective December 9, 2019.]
Rule 9. Attorney for protected person or proposed protected person.
A. A protected person or proposed protected person has a right to legal representation and shall be entitled to retain counsel of his or her choosing to represent him or her in any guardianship or other related court proceeding. A protected person or proposed protected person may decline representation by an attorney or by a court-appointed attorney, unless the court finds that the protected person or proposed protected person lacks the minimum capacity to make those decisions. A protected person’s or proposed protected person’s waiver of right to counsel must be made knowingly and voluntarily and must be reasonable under the circumstances.
B. The attorney for a protected person or proposed protected person shall zealously advocate for the protected person’s or proposed protected person’s expressed wishes and shall protect the due process rights of the protected person or proposed protected person.
C. The attorney for the protected person or proposed protected person shall maintain, as far as reasonably possible, a normal client-attorney relationship as prescribed by the Nevada Rules of Professional Conduct and shall advocate for the expressed wishes of the protected person or proposed protected person, even if those expressed wishes are in conflict with the client’s apparent best interests.
D. An attorney for a protected person or proposed protected person shall in all cases:
1. Review the petition for guardianship, certificates of current physical, medical, and intellectual examinations, and all other available court filings;
2. Personally visit and interview the protected person or proposed protected person prior to the initial hearing to appoint a guardian, unless the protected person or proposed protected person is located outside the judicial district in which the guardianship case is pending, in which case the attorney shall visit as frequently as necessary and practicable under the circumstances;
3. Explain to the protected person or proposed protected person, to the extent possible and in terms he or she is most likely to understand, the nature and possible consequences of the proceedings, the legal options and alternatives that are available, and the rights to which the protected person or proposed protected person is entitled, including specifically the person’s right to oppose the guardianship or oppose the scope of the guardianship;
4. Secure and present admissible evidence and offer argument as appropriate and warranted to further the expressed wishes of the protected person or proposed protected person and to protect his or her rights and interests; and
5. Continue as the attorney for the protected person or proposed protected person unless and until relieved as counsel by order of the guardianship court;
E. The duties of the attorney for a protected person or proposed protected person include but are not limited to:
1. Zealously advocating for the expressed wishes of the protected person or proposed protected person, including those wishes contained in any advance directive or estate-planning document;
2. Reviewing the petition for guardianship, certificates of current physical, medical, and intellectual examinations, and all other available court filings and supporting documents;
3. Personally meeting and interviewing the protected person or proposed protected person prior to a hearing to appoint a guardian or temporary guardian and thereafter as otherwise appropriate to foster communication, unless the protected person or proposed protected person is located outside the judicial district in which the guardianship case is pending, in which case the attorney shall communicate and/or meet with the protected person or proposed protected person as frequently as necessary and practicable under the circumstances;
4. Explaining to the protected person or proposed protected person, to the extent possible and in terms he or she is most likely to understand, the nature and possible consequences of the proceedings, the legal options and alternatives that are available, and the rights to which the protected person or proposed protected person is entitled, including specifically the person’s right to oppose the guardianship or oppose the scope of the guardianship;
5. Securing and presenting available evidence and testimony and offering argument as warranted that would tend to further the expressed wishes of the protected person or proposed protected person and protect his or her rights and legal interests;
6. Conducting independent investigation to ascertain the facts of the case;
7. Participating in all court proceedings, mediations, settlement conferences, and negotiations;
8. Ensuring the protected person or proposed protected person is in attendance at court proceedings where attendance is appropriate, unless appearance is waived by the court;
9. Communicating, coordinating, and maintaining a professional relationship in so far as possible with all parties;
10. Filing appropriate petitions, motions, briefs, and appeals on behalf of the protected person or proposed protected person;
11. Communicating the court’s decisions and consequences to the protected person or proposed protected person;
12. Ensuring there is no less restrictive alternative to guardianship or to the matter before the court;
13. Ensuring proper due process procedure is followed and relevant statutes are complied with;
14. Confirming the petition for guardianship can be supported by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in any subsequent proceedings;
15. Confirming the proposed guardian is a qualified person to serve or to continue to serve, consistent with all statutory requirements;
16. Advocating for and confirming that if a guardian is appointed, the initial order and any subsequent order is least restrictive of the personal freedom of the protected person in type, duration, and scope, consistent with his or her need for care and supervision;
17. Protecting the dignity of the protected person or proposed protected person;
18. Protecting the personal, confidential, financial, and medical information and documents concerning the protected person or proposed protected person; and
19. Continuing as the attorney for the protected person or proposed protected person unless and until relieved as counsel by order of the guardianship court.
F. Upon the appointment of an attorney for the protected person or proposed protected person, the court shall enter an order authorizing the attorney access to the protected person or proposed protected person and allowing the attorney access to all relevant documents and information concerning the protected person or proposed protected person, including but not limited to private, confidential, financial, and HIPAA-protected information and documents.
G. An attorney for a protected person or proposed protected person shall be entitled to waive rights and admit matters within the guardianship proceeding on behalf of the protected person or proposed protected person so long as such waiver or admission is not contrary to the expressed wishes of the protected person or proposed protected person.
H. The role of the attorney for the protected person or proposed protected person is distinct from the role of a guardian ad litem appointed under NRS 159.0455 or an investigator appointed under NRS 159.046. An attorney for a protected person or proposed protected person shall not serve as a guardian ad litem in the same case or in a related matter. An attorney for a protected person or proposed protected person shall not serve as the attorney for the guardian(s) in the same or related case.
I. If the protected person or proposed protected person is unable to express or communicate his or her wishes to the attorney or maintain, as far as reasonably possible, a normal client-attorney relationship, the attorney shall protect the legal interests and due process rights of the protected person or proposed protected person, and the attorney may take reasonably necessary protective action pursuant to Rule 1.14 of the Nevada Rules of Professional Conduct, which may include requesting the appointment of a guardian ad litem under NRS 159.0455 to advocate for the best interest of the protected person or proposed protected person.
J. The attorney for a protected person or proposed protected person shall ensure the rights set forth in the Protected Persons Bill of Rights are upheld, and the attorney shall be authorized to prosecute a petition within the guardianship on behalf of the protected person or proposed protected person to enforce the rights of the protected person or proposed protected person, including those rights set forth in the Protected Person’s Bill of Rights. With the express prior approval of the court, the attorney for a protected person or proposed protected person may commence a separate lawsuit on behalf of the protected person or proposed protected person to enforce the rights of the person, including those rights set forth in the Protected Person’s Bill of Rights.
K. An attorney who represents siblings or spouses in a guardianship(s) shall be alert to potential conflicts and request that the court appoint separate attorneys in the event that a conflict or potential conflict should arise.
L. An attorney for a protected person or proposed protected person shall only be entitled to receive compensation for legal services provided upon compliance with NRS 159.344 and upon receipt of a court order approving of said payment, whether or not paid from the guardianship estate or from a third party.
[Added; effective December 9, 2019.]
Rule 10. Termination of guardianships for noncompliance with no further identification of whether a guardianship remains necessary, and if so, a successor guardian.
A. Where the court removes a sole guardian based upon the sole guardian’s noncompliance with his or her duties and responsibilities pursuant to NRS 159.185-.1857/159A.185-.186, suspends a sole guardian’s authority under NRS 159.1855(3)/159A.1855(3), or revokes letters of guardianship pursuant to NRS 159.085(8)/159A.085(8), the court shall not terminate the guardianship pursuant to NRS 159.1905-.192/159A.1905-.192 without making specific findings as to:
1. The protected person’s current health and welfare;
2. The reasons a guardianship does or does not remain necessary, including identifying the existence of less-restrictive alternatives; and
3. Whether maintaining the guardianship would serve the protected person’s best interests.
B. Where the location and circumstances of the protected person are unknown to the court and/or parties of record, prior to terminating a guardianship pursuant to NRS 159.1905-.192/159A.1905-.192 based upon a guardian’s noncompliance with duties and responsibilities under law, the court shall order an investigation pursuant to NRS 159.046, 159A.046, and/or NRS 159.341 to verify the status of the protected person.
C. Upon notice, the court may appoint the public guardian as temporary guardian of a protected adult during pendency of proceedings described in subsection A.
[Added; effective December 9, 2019.]
Rule 11. Guardianship review hearing.
A. Guardianship of person. A review hearing shall be held by the court on every guardianship of person not later than 3 years after the initial appointment of a general or special guardian of the person, and not later than 3 years after each preceding review hearing. A review hearing may occur in response to the report of the person required by NRS 159.081/159A.081 or at any other time as the court may order.
B. Guardianship of estate. The court shall review every guardianship of estate annually on which a hearing of account is required by NRS 159.181/159A.181.
[Added; effective December 9, 2019.]
Rule 12. Operating accounts; bonds.
A. The court may require blocked accounts for the guardianship in addition to or in lieu of requiring a bond of the guardian and limit the disbursements from the guardianship estate out of the blocked accounts. Such disbursements shall be made to a separate operating account under the name of the guardian and on behalf of the protected person to provide for the health, welfare, and support of the protected person. This rule shall not apply to the public guardian under NRS 253.010-.250.
B. A guardian shall acquire a bond to secure performance of the guardian’s duties if a court issues a finding that a bond is needed to protect the interests of the beneficiaries.
C. Using the inventory of a protected person that shows the value of the guardianship estate’s personal property, the probable annual gross income of the estate, and the sum of the probable annual gross payments of the public benefits of the protected person, the court may set a bond for the protection of a protected person. Except as otherwise provided by statute, every guardian of the estate must furnish a bond that includes an amount 10 percent in excess of the value of the estate as a reasonable amount for the cost of recovery to collect on the bond.
D. Posting of a bond does not protect a guardian or eliminate personal liability over and above the amount of the bond, should the bond be found to be insufficient to cover any losses to the protected person for improper actions of the guardian.
E. If two or more persons are to serve as guardians and the court does not waive bond, the court may require each guardian to give a bond.
F. Because a corporate guardian (whether personal representative, guardian, conservator, or trustee) cannot assume responsibility for the acts of an individual co-guardian, an individual co-guardian who is required to give a bond must provide a separate bond, except to the extent that the court orders the assets to be held solely by the corporate co-guardian.
G. The court may require an additional bond for the guardian in the event real or personal property is sold from the guardianship estate.
H. The court may increase, decrease, or terminate a guardian’s bond at any time or upon the presentation of facts making it necessary or appropriate to adjust the amount of the bond.
I. Upon good cause, any party or interested person may make a request for an adjustment of the guardian’s bond.
J. The public guardian’s bond under NRS 253.160(2) shall be sufficient for this rule, and the court shall not require additional bonds.
[Added; effective December 9, 2019.]
Rule 13. Mediation and other forms of alternative dispute resolution.
A. Definition. Mediation is an approach to conflict resolution or decision-making in which a mutually acceptable, neutral, and impartial third party helps the participants reach consensual and informed agreements. In mediation, decision-making rests with the parties. The mediator reduces obstacles in communication, maximizes the exploration of options for resolution, and addresses the needs and concerns of those who are involved or affected by the issues under discussion.
B. Application. This rule applies to all actions filed under NRS Chapter 159.
C. Procedure. The guardianship mediation manual as approved by the Nevada Supreme Court governs mediations of actions filed under these chapters.
1. At any time after an action is filed under NRS Chapter 159, any of the parties referenced in Policy #2 part I of the guardianship mediation manual may file a petition with the court requesting mediation for the purpose of providing an alternative to litigation in resolving any, some, or all matters at issue in the case.
2. The petition may include the names of any acceptable mediators.
D. Program evaluation.
1. At the conclusion of the mediation referral, the mediator shall file a Notice of Outcome of Adult Guardianship Mediation with the Court and serve a copy of the notice upon all individuals or entities who are entitled to notice under NRS 159.034.
2. All participants in the mediation will complete a survey of their experience with the mediation process.
3. Both the form of the Notice of Outcome of Adult Guardianship Mediation and the participant survey shall be as approved by the Nevada Supreme Court.
[Added; effective June 8, 2020.]