Nevada Legislature rewrites guardianship law to strengthen right to counsel

In response to a Nevada Supreme Court Commission report recommending numerous changes to the state’s guardianship law, the Legislature passed a bill in 2017 rewriting Nev. Stat. § 159.0485 to remove the requirement that a protected person request counsel and require the appointment of counsel for reviews of guardianship as well as the establishment (previously, appointment was discretionary at the review stage).  The new § 159.0485 reads:

1. Upon the filing of a petition for the appointment of a guardian for a proposed protected person who is an adult, the court shall appoint an attorney for the proposed protected person unless the proposed protected person wishes to retain or has already retained an attorney of his or her own choice.

2. The court shall:

(a) If the proposed protected person resides in a county that has a program for legal services for the indigent which provides legal services for protected persons and proposed protected persons who are adults and the program is able to accept the case, appoint an attorney who works for the organization operating the program to represent the proposed protected person. After such an appointment, if it is ascertained that the proposed protected person wishes to have another attorney represent him or her, the court shall appoint that attorney to represent the proposed protected person. An attorney appointed pursuant to this subsection shall represent the proposed [adult ward] protected person until relieved of the duty by court order.

(b) If the proposed protected person resides in a county that does not have a program for legal services for the indigent which provides legal services for protected persons and proposed protected persons who are adults, or if such a program exists but the program is unable to accept the case, the court  shall determine whether the proposed protected person has the ability to pay the reasonable compensation and expenses of an attorney from his or her estate. If the proposed protected person:

(1) Has the ability to pay the reasonable compensation and expenses of an attorney, the court shall order an attorney to represent the proposed protected person and require such compensation and expenses of the attorney to be paid from the estate of the proposed protected person.

(2) Does not have the ability to pay the reasonable compensation and expenses of an attorney, the court may use the money retained pursuant to subparagraph (2) of paragraph (a) of subsection 3 of NRS 247.305 to pay for an attorney to represent the proposed protected person.

3. If an attorney is appointed pursuant to paragraph (a) of subsection 2 and the proposed protected person has the ability to pay the compensation and expenses of an attorney, the organization operating the program for legal services may request that the court appoint a private attorney to represent the proposed protected person, to be paid by the proposed protected person.

4. If the court finds that a person has unnecessarily or unreasonably caused the appointment of an attorney, the court may order the person to pay to the estate of the protected person or proposed protected person all or part of the expenses associated with the appointment of the attorney.

For modification or termination of the guardianship, Nev. Stat. § 159.1905(2) now specifies, “Upon the filing of the petition, the court shall appoint an attorney to represent the protected person if: (a) The protected person is unable to retain an attorney; or (b) The court determines that the appointment is necessary to protect the interests of the protected person.”