In Nevada, guardianships generally begin when a concerned family member or social worker petitions Family Court to appoint a guardian for someone who cannot care for himself or herself because of age or mental or physical problems. In Clark County, the case goes to the Guardianship Commissioner, an appointed hearing master who oversees all such cases through Family Court. A guardian is appointed after a person is deemed mentally incompetent and declared a ward of the county. Sometimes the finding of incompetency is made without notifying the person in question, who might have to challenge the finding after the fact. If no Clark County resident volunteers to stand in as a guardian, the Guardianship Commissioner must appoint either a public or private guardian.
The Clark County public guardian usually gets cases when the ward has few assets. In those instances, most costs associated with the care, including the salaries of county employees in the office, are covered by taxpayers. But more well-to-do wards can be assigned one of 25 or so private professional guardians certified in Clark County. Private guardians are allowed to charge “reasonable” fees for their services, although there’s no definition of “reasonable” in state law. The Guardianship Commissioner approves fee schedules, which vary by service and by guardian, but does not check the guardian’s actual billings unless someone complains. With so little checks and balances in place, it is no wonder that guardianship continues to be an avenue of abuse by those appointed to take care of those who are incapable of taking care of themselves.
The abuse of guardians over the estates of wards of the State is not a new issue. In Nevada, NRS Chapter 159 governs guardianships and ultimately gives wide latitude on how guardians handle the wards and estates of which they have been appointed. In 2010, the Government Accountability Office (GAO), which performs research and investigations for Congress, released a national analysis of guardianship abuse. The study included in-depth examinations of 20 cases across 45 states and the District of Columbia between 1990 and 2010, finding that court-appointed guardians had stolen a cumulative $5.4 million from 158 incapacitated wards. The study also noted the courts commonly:
- Failed to properly screen guardians and appointed guardians who had criminal convictions or significant financial problems;
- Failed to oversee guardians after appointment; and
- Failed to communicate with federal agencies about abusive guardians.
Even more telling of the problems with guardianship abuse, the GAO using two fictitious identities—one with bad credit and one with the Social Security Number of a deceased person—was able to obtain guardianship certification or met certification requirements in the four states where it had applied: Illinois, Nevada, New York, and North Carolina. The ability of the GAO to gain certification or qualify for certification in these states raises questions about the effectiveness of these four state certification programs. The full GAO report can be found online here.
Currently pending in the Eighth Judicial District Court of Nevada is a suit by a former ward of the state against one of the county’s most prominent private guardians and his company. The lawsuit alleges that the guardians of this prominent company and employees stole jewelry and other personal property from the ward, verbally threatened the ward and drained the assets of the ward from about $495,000 to just under $35,000. The claims are conversion, breach of fiduciary duty, negligent hiring, negligent performance of an undertaking, unjust enrichment, intentional infliction of emotional distress, and violation of NRS 41.1395. The one licensed private guardian is currently serving 3-8 years in prison for stealing from the ward. However, the remainder of the lawsuit is still pending against the principal of the private guardianship company as well as others.
Given the high profile of this lawsuit and everything that has been researched and investigated in the past by government organizations regarding guardianship abuse, it will be interesting to see if Nevada will see an overhaul of its guardianship system. Based on the facts, it is certainly time that something is done.