Guardians

1. Guardians Who are we, What do we do and Why

2. GUARDIANS-WHO ARE WEGuardians can be divided into two categories: • Non-professionals • Non-professionals are family, friends, or other parties who may or may not be related to the ward, do not do guardianships as a living, and may or may not be paid for their services. • Professionals • Professional guardians are Public Guardians and Private Professional Guardians who hold themselves as conforming to specific standards of skill, competence, and ethics of guardianship work and to be properly qualified and experienced persons in the guardianship field. Guardianship professionals are paid for their services either through their paycheck from the agency they work through or the estates of the wards.

3. Professional guardians are required to meet NV state law and their agency policy regarding their profession. • Private Professional Guardians in meeting NV state law must also be certified by the Center for Guardianship Certification (CGC), a national organization that works with the National Guardianship Association (NGA) to promote excellence, standardization, and education in the practice of guardianships nationally. A Private Professional Guardian may be an entity or a person. If the guardian is an entity, a person working in that entity must be certified. • In Nevada all guardians, non-professional or professional must abide by NRS Ch. 159. Public Guardians as stated before also have statutes in NRS Ch. 253 they must comply with as well. • By far, most guardianships are appointed to non-professionals, most of those being family members. According to the figures just provided by the Second Judicial District Court in Washoe County, approximately 70% of guardianships are done by non-professionals. The 8th Judicial District Court in Clark County is in the process of collecting their data, but there is a good probability that their statistics will be close to the percentages found in Washoe County. The district courts in the rural counties have also been asked to gather their data. Their figures will most likely depend on how active the Public Guardian’s office is in each county(ies) where the district court resides.

4. GUARDIANSHIP-WHAT DOES THAT MEAN • In becoming a guardian, all guardians agree to essentially take responsibility of another person’s life, the ward. The ward has reached a point in his life where he can no longer handle his affairs. The guardian is then appointed by the court to handle the ward’s affairs. • Depending on the type of guardianship the guardian is appointed to, the guardian is expected to meet the needs of the ward as best she can while also dealing with the financial and medical realities of the ward. The guardian is to do this while conforming to the requirements of the law. • Being a guardian then is a tremendous responsibility and does have its positive and negative aspects. A guardian can make a very dramatic change in a wards life for the good, or if the guardian is not doing her job correctly, can cause damage to the ward and his estate.

5. NEGATIVE ASPECTS Unfortunately, according to the figures accumulated by Elder Protective Services who serve the 60 years and older population in NV( as of February 2015) 66% of the abuse and neglect of our elder population in NV is done by family members and 7% by friends. According again to the statistics provided by the Second Justice District Court, 40% of their guardianships are for those over 60. The probability then of abuse or exploitation in guardianships, at least of the elderly by non-professionals is a very real possible scenario.

6. Professional Guardians are held to a higher level of standards than non-professional guardians by the courts and the community and rightly so. • Unfortunately, there have been a few professionals, both Public Guardians and Private Professional Guardians, in the state that have used their guardianship status for their own gain and have been prosecuted and /or removed from their position. • There are some professional cases now in Clark County that are being reviewed for possible breach of duty. Although these are a very small percentage compared to the overall guardianship case load in that county (less than 1%), any breach of duty by any guardian is unacceptable. • So diligence for all types of guardians is necessary.

7. Guardians have to make some very tough decisions that can initially cause much distress to wards such as having to move them from their home, take away their car, or take away a beloved pet. • These decisions are hopefully made due to the necessity of having to make them depending on the circumstances the wards find themselves in. • While most people would of course sympathize with the ward and justifiably so, the guardian is also dealing with the emotional toll these type of decisions make on them. It is not easy or desirable, no matter how necessary, to cause emotional pain to another human being. • There is also a toll on guardians in dealing with illness (especially with a loved one), • behavioral challenges including the often felt resentment from the ward to the guardian, • unexpected challenges such as medical emergencies, and end of life issues.

8. Taking on the responsibility of handling the affairs of another human being leaves the guardian open to questioning of the guardian’s decisions, motives, and agendas- not just by the courts, but by the community as well. Guardians are often placed in situations where their decisions can divide them from family members, medical personnel, friends, and other parties who do not agree or understand the decisions they are making for the wards. • Guardians are often criticized for actions they believe they are taking for the good of their wards by those who are either not aware of why they are making those decisions or are affected by those decisions in ways they are not pleased with. Since the privacy of the ward is paramount, guardians cannot always explain what they are doing and why to those who are criticizing or questioning which places them in a very uncomfortable and sometimes unfair situation.

9. Non-Professional Guardians are expected to comply with laws they are not familiar with. • Especially spouses that are guardians are often confused by decisions that they think they can usually make on their own when they now have to get court approval. • If the guardian is not represented by an attorney who can assist the guardian in complying with the laws, the guardian can unknowingly become noncompliant with the requirements of the law and put the guardianship in a compromised position.

10. Professional guardians can also become overwhelmed with guardianship procedure when faced with changing court rules, policies, legislative changes, lack of resources and support, and other situations that add more responsibility and liability to an already high pressure and sensitive work environment. • Private Professional Guardians (PPGs) are often criticized for being paid for their services from the wards’ estates. Most of those criticizing have no clue what it takes to not only do the work but keep open a business that allows them to provide their services to those that need them. As guardianship fees are to be approved by the courts before PPGs can be paid, any inappropriate fee requests have a forum for review. • Public guardians can also be a source of public criticism by parties that are unhappy with the work they think the Public Guardian may or may not be doing. But all professionals understand this is part of being a professional guardian and try to improve where they can and otherwise take this type of negativity in stride.

11. Guardians have to be available 24 hours, seven days a week. This can cause great anxiety and stress on guardians, especially those who are also the caregivers. • Guardians cannot legally give their authority to someone for a temporary period of time in order to take a vacation, take care of their own needs such as surgery, or for any respite time. • The only exception is a public guardian who can appoint a deputy public guardian. (NRS 253.175) • Co-guardianships can be an answer to that situation if there are others available to assist in that way, but as guardianships are such a responsibility, there is not always someone else willing and able to assist in a co-guardianship.

12. POSITIVE ASPECTS • Most non-professional guardians take on the responsibility of performing their role due to the love they have for the ward and/or a sense of duty they may have toward the ward. • Most non-professional guardians have little to no understanding what the role of being a guardian really means other than to continue being a loving family member or friend. • But they take on the role because they know someone must. So the guardianship role is really an extension of the relationship they have already had with the ward. • This means the guardianship hopefully will be a meaningful and caring role which only benefits the ward.

13. Most professional guardians take on the responsibility of becoming guardians due to a desire to help others in the community where they live • Private guardians can also reach out to communities that may not have the resources needed to assist those persons who require a guardian. • Where there may be a few instances where professional guardians cause problems such as exploitation, by far, the majority of the work involves stopping harm to the wards and improving their quality of life which can be incredibly rewarding. • Professional guardians feel it is a great honor to be able to assist those in need whether it be the mentally ill, the intellectually disabled, seniors with a cognitive illness, or a person with traumatic brain injury. • So although there are far more negatives in guardianship than positives, the positives in guardianship are what keeps guardians doing their role.

14. DUTIES OF A GUARDIAN The main role of a guardian is to manage the affairs of a ward. To do so, a guardian, depending on the type of guardianship, works in four areas: • the person; • finances; • property; and • legal requirements

15. PERSONDuties include but are not limited to: • Monitor and manage the mental, physical and social well-being of the ward on a continuous basis including overseeing care providers, placement agencies, medical personnel and making sure all medical needs are being maintained as needed • Be available at all times to authorize procedures, medication changes, admits, discharges or deal with any other issues where authorization/consent is needed • Be available at all times to be notified of emergency issues or other issues affecting the ward • Be available at all times to make decisions regarding the well-being of the ward • Review contracts, releases, and other documents needing guardian’s signature • Provide the least restrictive environment as possible while maintaining the measures needed to keep the ward safe within the ward’s financial capability • Maintain a quality of life that the ward’s physical health, mental health, and finances will allow

16. Person cont. • Safeguard the ward’s dignity and privacy as much as possible • Protect the ward from abuse, neglect, or harm • Report to Elder Protective Services and/or complete police reports if illegal activities are discovered and following through to the conclusion of the investigation and/or legal proceedings • Advocate for the ward’s needs whenever needed • Review all mail with personal mail going to the ward if appropriate and financial bills going to the guardian of the estate or financial representative • Maintain a log of events, interventions, daily activities, and health issues if possible • Develop a plan for end of life issues by discussing issues beforehand with ward and family if appropriate and reviewing estate planning documents

17. FINANCESDuties include but are not limited to: • Investigate the finances of the ward in order to marshal all assets • Secure, freeze, close, move, and retitle accounts as appropriate • Maintain all accounts in guardianship accounts separate from guardian’s personal accounts • Notify creditors as to why a debt cannot be paid if there are not funds of the ward to pay the debt. • Protect the ward from exploitation or other illegal activities against the ward’s estate • Report to Elder Protective Services and/or complete police reports if illegal activities are discovered and following through to the conclusion of the investigation and/or legal proceedings • Make financial decisions regarding the care and needs of the ward based on the financial capability of the ward • Pay bills • Maintain trust accounts as needed in facilities for the ward’s personal needs • Maintain budget and anticipate ward’s financial needs within that budget • Monitor investments

18. Finances cont. • Prepare information for taxes and make sure taxes are prepared and filed • Review all mail with personal mail going to the ward if appropriate • Review contracts and other financial representative documents before signature • Complete applications and follow through for entitlements and benefits such as Medicaid, Medicare, other medical insurance, VA benefits such as Aids and Attendance, Social Security, SSI, and disability • Maintain a daily accounting of all income and expenditures, keeping all receipts if possible • Develop a plan for end of life issues such as paying for a preneed by discussing issues beforehand with the ward and family if appropriate and reviewing estate planning documents • Maintain a log explaining unusual and/or large expenditures

19. PROPERTY Duties include but are not limited to the following with court approval where necessary: • Secure and maintain all real and personal property as soon as possible • Search residence for valuables, important documents, and money • Inventory and document personal property • Appraise real and personal property as appropriate • Sell or rent real property and personal property such as a mobile home as appropriate • Store, sell, donate, and/or dispose of personal property as appropriate • Continue to secure and maintain real and personal property throughout guardianship if kept within the possession of the ward • Install and maintain any safety equipment as necessary for the ward in the ward’s residence • Keep all receipts and maintain a record and explaining where all personal properties are or where the property went if no longer in the possession of the guardianship

20. LEGAL Duties include but are not limited to: • Yearly accountings of person and estate-accountings in the estate requires a court hearing; the accounting of the person has a filing requirement only • Inventory and Record of Value filed within 60 days of appointment • Court appearances to sell real property, to approve investments, to move a ward out of state, to change estate plans, and other issues as enumerated in NRS 159

21. DEATH AND DYING Two of the most important issues we deal with as guardians are the dying process and death of the ward. Each person has their own journey during the declining process and death is of course the final step. Many, if not most, guardianships are for the duration of a person’s life so death is an integral part of the guardianship experience for guardians.

22. Dying • Part of our duty and responsibility as guardians is to make the death process as dignified and painless as possible. • It is important that guardians advocate for the needs and wishes or their clients many of whom can no longer speak for themselves. • The guardian deals with the families’ grief process as well and need to make sure they are included if they desire to do so and are appropriate to do so. • The guardians and sometimes with families, are the ones to decide whether or not to have that surgery to prolong life, or, to put in that feeding tube, or to say enough is enough.

23. Along with wishes stated in end of life documents if guardians have them, quality of life factors are many times the deciding factors in the decisions guardians make for the ward. • For the most part, the guardians are the final decision makers. • Guardians deal with hospice agencies on a continuous basis; they work closely with doctors, nurses, and caregivers to make sure that the ward is as comfortable as possible, and make sure the family is contacted and involved if appropriate to do so. • Guardians are to make sure to have living wills and durable power of attorney for health care available to all appropriate medical personnel and are now in the process of dealing with the POLST forms for wards.

24. Death • Guardians try to prepare for the death of the ward by working on finding out what the person’s wishes are beforehand. • These wishes are for issues such as cremation vs. burial, where they want to be interred, what is to be engraved on the grave stone or any other choices the person can make. • It is important to validate those choices with family and friends who might have understood the person’s wishes as well. • For a professional guardian, it is also important to keep family involved in the decisions made to pay for services ahead of time because most prof. guardians do not generally get involved with the memorials, types of urns, coffins, obituaries, and such as that is believed to be the prevue of the ward and the family unless funds become a factor.

25. When family is not available or appropriate, then the guardians will make those decisions based upon the information they can obtain and the finances that are available. • At the time of death, guardians are to make sure the planned arrangements are followed through with and that the final wishes are carried out. • Guardians assist the family as much as they need or stay to the side while the family carries out their responsibilities. • Death is the most common reason to terminate a guardianship.

26. Decision Making • The guardian is the person legally responsible for making and rendering decisions. • The guardian may consult with professionals, friends, family members, and/or clergy. • Ultimately the decision must be made by the guardian. • The guardian will need to make a decision that is solely for the interest of the ward. • If the ward has previously recorded written wishes (advanced directive, living will) those should serve as the decision making guide.

27. Two decision making theories: • Best interest-what is in the person’s best interest at the time • Substituted judgment-what the person may have wanted when competent and/or what is consistent with decisions they have made throughout their lifetime taking into consideration the person’s values and beliefs.

28. Substituted Judgment: • It is always best guardianship practice to make decisions based on the ward’s values, religious beliefs, wants, needs, desires and stated preferences. • A guardian should also try to make decisions based on decisions the ward has made in the past.

29. Best Interest: • If a guardian is not aware of their ward’s past preferences sometimes they must make decisions based on the best interest of the ward. • This means that a guardian will evaluate all of the options available when making decisions to determine what is best for the ward.

30. While the guardian has the legal responsibility and authority to make decisions, to the extent possible, the individual should be given the ability to participate in making decisions about their life. • How much participation should be based on the individual needs of the ward, their diagnosis and ability to communicate their wants, the reasonableness/safety of their wishes.

31. Different Ways of Approaching Decision Making Beyond substituted judgment and best interest, guardians have to also make decision based upon: • ethical standards • safety • availability of finances and resources • state statutes • judge’s rulings • policy and dynamics of family/business guardian is working within • circumstances beyond the guardian’s control-guardians can only do what they can do

32. COMPLICATIONS OF DECISION MAKING FOR GUARDIANS Non-professional: Families, friends, or other nonprofessional guardians have several issues that they deal with that make them unique in the work they do: A) Emotional ties. 1) When the person under the guardianship is a loved one or dear friend, the task of making decisions would seem to be a normal undertaking. The problem is that, unless the ward is in a coma or nonresponsive state, the guardian is dealing with someone who is still very much aware of the fact that decisions are being made for that person who may not agree with what is happening. The consequences may be that the ward can become angry, depressed, sad, defiant, and/or resistant to decisions being made which can directly affect the relationship between the guardian and ward.

33. For example, the adult child who becomes the guardian now takes the role as the parent which can cause much resentment by the ward. This can cause the guardian to maybe not make a decision in the best interest of the family member because the guardian is concerned that decision may make the relationship with the loved one even worse. This can cause a dilemma in the decision making ability for the guardian and can affect the welfare and wellbeing of the ward

34. B) Living with the ward 1) When the ward lives with the guardian, mostly as a spouse, the guardian not only deals with the relationship issue overall, but must live with the ramifications on a daily basis. Unless the spouse finds ways to get relief from the constant ramifications of being the guardian, the guardian is in danger of being overwhelmed. 2) To add even more hardship, if the guardian is also the primary care giver, the odds are that if the guardian/caregiver does not find relief, that person will become so overwhelmed that he or she may have serious ramifications to their health and well-being.

35. C) Consequences of all decisions also affect the guardian 1) It is more than just health issues that can affect a family guardian. Decisions re: finances and placements can also affect the ability to manage short and long term issues. For instance, the family guardian can be directly affected by a spouse having to move outside the home and using joint income to pay for the added expense of an assisted living or nursing home. The adult children may be influenced by the fact that their inheritance is rapidly declining due to the care needs and decisions they are making for their parent. The spouse or adult child deals with making end of life decisions for their loved ones and live with the ramifications of those decisions. The decision may differ from other family members’ opinions which can lead to other ramifications.

36. D) Family dynamics 1) Families where there are step families and/or more than one sibling and the sibling or the spouse is the guardian, the guardian may face many challenges with differing opinions on almost any matter having to be decided on. From medication to placement to how the money is spent, families can be torn apart by disagreements about the guardian’s decision making. Families can also become closer if they work to support each other. Many times the decisive issues stem from long held resentments or negative feelings from childhood.

37. E) How to help: 1) Education 2) Respite Care-short breaks; longer breaks; adult day care 3) Financial advisor 4) Attorney- Medicaid spousal separation/order 5) Counseling 6) Mediation 7) Family meeting with physician 8) Family inclusion by guardian

38. Professional Guardians Easier to make decisions due to: • No emotional ties based on history and family biases • Support from agency, government entity and all that entails (H&R, bonding, policy and procedures) • Additional resource knowledge due to volume of cases • Working from previous experience on what works and what does not work • For private guardians-being able to work with co-guardianships for added support and trusts to be more flexible in financial decisions

39. Disadvantages for Professional Guardians: • The same areas such as policy and procedure issues can also limit what a professional guardian may or may not decide. • Decisions can become political issues which can involve county/state commissions, affect budgets, and the morale of the guardians and guardian case managers. • The expense of liability insurance, bonding of businesses, and licensure based on the actions and decisions of private guardians may be too much of a burden for very small businesses.

40. For all guardians, the decision making process is a tremendous responsibility as the guardian has another person’s welfare and life in the guardian’s hands. That alone can cause many sleepless nights... But there are other problematic aspects of decision making most guardians have to work with. This usually happens when there are: • 1) families and/or well-meaning friends who do not understand the reasoning for a particular decision that then causes the family member and/or friend distress or they understand but just disagree • 2) decisions that affects a family member or caregiver financially • 3) inappropriate family members or caregivers who lose control of their family member or the person being cared for

41. The ramifications of decisions made by guardians that are looked upon unfavorably by others for various reasons can cause many problems for the guardians: • Receiving unsettling messages to threats of doing harm. • Acts of sabotage from undermining the guardianship to kidnapping the ward • Unfounded accusations made to police, EPS, and/or journalist

42. Ethical Issues in Guardianships There are several areas within guardianships that can cause ethical dilemmas. They usually center around areas that deal with liability to the guardian and quality of life issues for the ward. Guardians constantly have to think about the ramifications of their decisions not only for the ward but for themselves as well. While guardians are ethically bound to make decisions for the ward that promote the ward’s well-being, privacy, and safety there are times when those decisions are forcibly based on the resources and finances available, the dynamics of the situations presented, and the unusual wishes and desires of the ward. Guardians are presented then with decisions and actions that are questionable in their scope and practice. Ultimately, the guardian is responsible for decisions made on behalf of the ward but that does not mean the decisions are easy or predictable.

43. How much responsibility for a decision does a guardian give to an impaired person? • How to handle a guardianship in a rural area where many people know of the guardianship and the issues surrounding the ward? • How do you keep a person in the area they have family and connections when there are no resources available to do so? • How to tell wards about changes in their lives which they cannot understand without lying to them?

44. How far do guardians go in making medical decisions when the wards’ wishes are not known? • Do you always keep wards in their homes if they can afford to do so? • How far do guardians allow for the benefit of their wards such as visiting a brothel, allowing alcohol, taking trips with their limited funds?

45. Individuals acting as guardian for disabled individuals are vested with enormous responsibility. The need to balance the goal of protection of the ward with the goal of minimizing the deprivation of the ward’s rights, presents a complex matrix of decisional and ethical factors. It is important to understand the guardian’s role in order to better provide those goals for the ward. To help toward that understanding, copies of the “NGA Standards of Practice” and “A Model Code of Ethics for Guardians” are provided for review. Thank You