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Mahe Law, Ltd.
Most people have heard the recent news regarding Casey Kasim and the dispute as to who has the legal right to make decisions for him, specifically which family members get to see him. Obviously everyone hopes that they will never end up in a situation like Mr. Kasim. Nonetheless, such situations are common and situations involving caring for a loved one are even more common.
When an individual whom you love requires assistance, whether such assistance is required because of disability or age, it is always a stressful and challenging time. The stresses are usually increased as the caretaker role is undertaken and questions begin to arise regarding what rights and limitations the caretaker may have to make decisions on behalf of their loved one. The rights and limitations vary depending upon the legal documents which your loved one has previously executed and the types of decisions which need to be made.
Many competent adults, at some point in their life, execute an estate plan. Depending upon the type of estate plan which they 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 healthcare is designed to allow a competent adult to identify an individual who can make medical decisions on behalf of the adult in the event the adult is unable to make such decisions on their own behalf. The Nevada financial durable power of attorney is designed to nominate someone to make all financial decisions, for example the payment of bills, on behalf of the competent adult executing the document. Obviously both of these documents are very powerful and serious consideration should be given to whom one authorizes to act as their agent when executing the documents. Nonetheless, the execution of these documents allows the nominated agent to take broad action on your behalf and may avoid the need to resort to having a guardian appointed.
Despite the power of these documents and the potential for such documents to allow those caring for their loved ones to avoid getting guardianship of their loved one, in some situations guardianship remains necessary. The most common situation in which guardianship is necessary is when neither, or only one type, of durable power of attorney has been executed prior to a loved one being deemed incompetent. In that situation, without an applicable durable power of attorney, and decisions which must be made, guardianship will be necessary. Additionally, in some situations, even when durable powers of attorney have been executed, guardianship is necessary, usually based upon the circumstances and decisions which need to be addressed. For example, when there are concerns regarding potential abuse by the agent nominated, when a third party requests that an individual be appointed as guardian prior to providing services to your loved one, or when there is a dispute regarding who can have access to your loved one, like the case of Mr. Kasim.
If you find yourself in the situation where you need to obtain guardianship of a loved one than the legal process to obtain guardianship will require court action. Obviously this can be moderately costly and time consuming. Additionally, it can be embarrassing for your loved one if they understand that they are involved in a court proceeding to have them deemed incompetent and have someone appointed to act on their behalf. Nonetheless, if a guardianship is necessary because of the circumstances your loved one is in, the legal process is not so onerous as to be avoided at the cost of your loved one's well-being.
Posted on June 26, 2014 by J. Mahe
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