(REPRINTED WITH ADOPTED AMENDMENTS)

 

Senate Bill No. 34–Committee on Judiciary

 

Prefiled January 24, 2001

 

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Revises provisions relating to appointment of temporary guardians. (BDR 13‑1070)

 

FISCAL NOTE:            Effect on Local Government: No.

                                    Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to guardianship; revising the provisions relating to the appointment of temporary guardians; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1    Section 1. Chapter 159 of NRS is hereby amended by adding thereto

1-2  the provisions set forth as sections 2 and 3 of this act.

1-3    Sec. 2.  1.  A petitioner may request the court to appoint a

1-4  temporary guardian for a ward who is an adult and who is unable to

1-5  respond to a substantial and immediate risk of physical harm or to a need

1-6  for immediate medical attention. To support the request, the petitioner

1-7  must set forth in a petition and present to the court under oath:

1-8    (a) Facts which show that the proposed ward:

1-9       (1) Faces a substantial and immediate risk of physical harm or

1-10  needs immediate medical attention; and

1-11      (2) Lacks capacity to respond to the risk of harm or to obtain the

1-12  necessary medical attention; and

1-13    (b) Facts which show that:

1-14      (1) The petitioner has tried in good faith to notify the persons

1-15  entitled to notice pursuant to NRS 159.047;

1-16      (2) The proposed ward would be exposed to an immediate risk of

1-17  physical harm if the petitioner were to provide notice to the persons

1-18  entitled to notice pursuant to NRS 159.047 before the court determines

1-19  whether to appoint a temporary guardian; or

1-20      (3) Giving notice to the persons entitled to notice pursuant to NRS

1-21  159.047 is not feasible under the circumstances.

2-1    2.  The court may appoint a temporary guardian to serve for 10 days

2-2  if the court:

2-3    (a) Finds reasonable cause to believe that the proposed ward is unable

2-4  to respond to a substantial and immediate risk of physical harm or to a

2-5  need for immediate medical attention;

2-6    (b) Is satisfied that the petitioner has tried in good faith to notify the

2-7  persons entitled to notice pursuant to NRS 159.047 or that giving notice

2-8  to those persons is not feasible under the circumstances, or determines

2-9  that such notice is not required pursuant to subparagraph (2) of

2-10  paragraph (b) of subsection 1; and

2-11    (c) Finds that the petition required pursuant to subsection 1 is

2-12  accompanied by:

2-13      (1) A certificate signed by a physician or psychologist who is

2-14  licensed to practice in this state which states that the proposed ward is

2-15  unable to respond to a substantial and immediate risk of physical harm

2-16  or to a need for immediate medical attention; or

2-17      (2) The affidavit of the petitioner which explains the reasons why

2-18  the certificate described in subparagraph (1) is not immediately

2-19  obtainable.

2-20    3.  Except as otherwise provided in subsection 4, after the

2-21  appointment of a temporary guardian, the petitioner shall attempt in

2-22  good faith to notify the persons entitled to notice pursuant to NRS

2-23  159.047. If the petitioner fails to make such an effort, the court may

2-24  terminate the temporary guardianship.

2-25    4.  If, before the appointment of a temporary guardian, the court

2-26  determined that advance notice was not required pursuant to

2-27  subparagraph (2) of paragraph (b) of subsection 1, the petitioner shall

2-28  notify the persons entitled to notice pursuant to NRS 159.047 without

2-29  undue delay, but not later than 48 hours after the appointment of the

2-30  temporary guardian or not later than 48 hours after he discovers the

2-31  existence, identity and location of the persons entitled to notice pursuant

2-32  to that section. If the petitioner fails to provide such notice, the court may

2-33  terminate the temporary guardianship.

2-34    5.  Within 10 days after the appointment of a temporary guardian

2-35  pursuant to subsection 2, the court shall hold a hearing to determine the

2-36  need to extend the temporary guardianship. Except as otherwise provided

2-37  in subsection 7, the court may extend the temporary guardianship until a

2-38  general or special guardian is appointed, but not for more than 30 days,

2-39  if:

2-40    (a) The certificate required by subsection 2 has been filed and the

2-41  court finds by clear and convincing evidence that the proposed ward is

2-42  unable to respond to a substantial and immediate risk of physical harm

2-43  or to a need for immediate medical attention; or

2-44    (b) The certificate required by subsection 2 has not been filed and the

2-45  court finds by clear and convincing evidence that:

2-46      (1) The proposed ward is unable to respond to a substantial and

2-47  immediate risk of physical harm or to a need for immediate medical

2-48  attention;

3-1       (2) Circumstances have prevented the petitioner or temporary

3-2  guardian from obtaining the certificate required pursuant to subsection

3-3  2; and

3-4       (3) The extension of the temporary guardianship is necessary and

3-5  in the best interests of the proposed ward.

3-6    6.  If the court appoints a temporary guardian or extends the

3-7  temporary guardianship pursuant to this section, the court shall limit the

3-8  powers of the temporary guardian to those necessary to respond to the

3-9  substantial and immediate risk of physical harm or to a need for

3-10  immediate medical attention.

3-11    7.  The court may not extend a temporary guardianship pursuant to

3-12  subsection 5 beyond the initial period of 10 days unless the petitioner

3-13  demonstrates that:

3-14    (a) The provisions of NRS 159.0475 have been satisfied; or

3-15    (b) Notice by publication pursuant to N.R.C.P. 4(e) is currently being

3-16  undertaken.

3-17    Sec. 3.  1.  A petitioner may request the court to appoint a

3-18  temporary guardian for a ward who is unable to respond to a substantial

3-19  and immediate risk of financial loss. To support the request, the

3-20  petitioner must set forth in a petition and present to the court under oath:

3-21    (a) Facts which show that the proposed ward:

3-22      (1) Faces a substantial and immediate risk of financial loss; and

3-23      (2) Lacks capacity to respond to the risk of loss; and

3-24    (b) Facts which show that:

3-25      (1) The petitioner has tried in good faith to notify the persons

3-26  entitled to notice pursuant to NRS 159.047;

3-27      (2) The proposed ward would be exposed to an immediate risk of

3-28  financial loss if the petitioner were to provide notice to the persons

3-29  entitled to notice pursuant to NRS 159.047 before the court determines

3-30  whether to appoint a temporary guardian; or

3-31      (3) Giving notice to the persons entitled to notice pursuant to NRS

3-32  159.047 is not feasible under the circumstances.

3-33    2.  The court may appoint a temporary guardian to serve for 10 days

3-34  if the court:

3-35    (a) Finds reasonable cause to believe that the proposed ward is unable

3-36  to respond to a substantial and immediate risk of financial loss; and

3-37    (b) Is satisfied that the petitioner has tried in good faith to notify the

3-38  persons entitled to notice pursuant to NRS 159.047 or that giving notice

3-39  to those persons is not feasible under the circumstances, or determines

3-40  that such notice is not required pursuant to subparagraph (2) of

3-41  paragraph (b) of subsection 1.

3-42    3.  Except as otherwise provided in subsection 4, after the

3-43  appointment of a temporary guardian, the petitioner shall attempt in

3-44  good faith to notify the persons entitled to notice pursuant to NRS

3-45  159.047. If the petitioner fails to make such an effort, the court may

3-46  terminate the temporary guardianship.

3-47    4.  If, before the appointment of a temporary guardian, the court

3-48  determined that advance notice was not required pursuant to

3-49  subparagraph (2) of paragraph (b) of subsection 1, the petitioner shall

4-1  notify the persons entitled to notice pursuant to NRS 159.047 without

4-2  undue delay, but not later than 48 hours after the appointment of the

4-3  temporary guardian or not later than 48 hours after he discovers the

4-4  existence, identity and location of the persons entitled to notice pursuant

4-5  to that section. If the petitioner fails to provide such notice, the court may

4-6  terminate the temporary guardianship.

4-7    5.  Within 10 days after the appointment of a temporary guardian

4-8  pursuant to subsection 2, the court shall hold a hearing to determine the

4-9  need to extend the temporary guardianship. Except as otherwise provided

4-10  in subsection 7, if the court finds by clear and convincing evidence that

4-11  the proposed ward is unable to respond to a substantial and immediate

4-12  risk of financial loss, the court may extend the temporary guardianship

4-13  until a general or special guardian is appointed, but not for more than 30

4-14  days.

4-15    6.  If the court appoints a temporary guardian or extends the

4-16  temporary guardianship pursuant to this section, the court shall limit the

4-17  powers of the temporary guardian to those necessary to respond to the

4-18  substantial and immediate risk of financial loss.

4-19    7.  The court may not extend a temporary guardianship pursuant to

4-20  subsection 5 beyond the initial period of 10 days unless the petitioner

4-21  demonstrates that:

4-22    (a) The provisions of NRS 159.0475 have been satisfied; or

4-23    (b) Notice by publication pursuant to N.R.C.P. 4(e) is currently being

4-24  undertaken.

4-25    Sec. 4.  NRS 159.047 is hereby amended to read as follows:

4-26    159.047  1.  Except as otherwise provided in NRS 159.0475, 159.049

4-27  and 159.052, and sections 2 and 3 of this act, the court, upon the filing of

4-28  a petition under NRS 159.044, shall direct the clerk to issue a citation

4-29  setting forth a time and place for the hearing and directing the persons or

4-30  institutions referred to in subsection 2 to appear and show cause why a

4-31  guardian should not be appointed for the proposed ward.

4-32    2.  A citation issued under subsection 1 must be served:

4-33    (a) If the proposed ward is an incompetent or a person of limited

4-34  capacity:

4-35      (1) Upon the spouse and adult children of the incompetent or person

4-36  of limited capacity who are known to exist, or, if there are none, upon any

4-37  parent, brother or sister of the incompetent or person of limited capacity;

4-38      (2) Upon any person or officer of an institution having the care,

4-39  custody or control of the incompetent or person of limited capacity; and

4-40      (3) Upon the incompetent or person of limited capacity.

4-41    (b) If the proposed ward is a minor:

4-42      (1) Upon the parents of the minor;

4-43      (2) Upon any person or officer of an institution having care, custody

4-44  or control of the minor; and

4-45      (3) If the minor is 14 years of age or older, upon the minor.

4-46    Sec. 5.  NRS 159.052 is hereby amended to read as follows:

4-47    159.052  1.  A petitioner may request the court to appoint a temporary

4-48  guardian [.] for a ward who is a minor and who is unable to respond to a

4-49  substantial and immediate risk of physical harm or to a need for

5-1  immediate medical attention. To support the request, the petitioner must

5-2  set forth in a petition and present to the court under oath:

5-3    (a) Facts which show that the proposed ward:

5-4       (1) Faces a substantial and immediate risk of [financial loss or]

5-5  physical harm or needs immediate medical attention; and

5-6       (2) Lacks capacity to respond to the risk of [loss or] harm or to obtain

5-7  the necessary medical attention; and

5-8    (b) Facts which show that:

5-9       (1) The petitioner has tried in good faith to notify the persons entitled

5-10  to notice pursuant to NRS 159.047;

5-11      (2) The proposed ward would be exposed to an immediate risk of

5-12  [financial loss or] physical harm if the petitioner were to provide notice to

5-13  the persons entitled to notice pursuant to NRS 159.047 before the court

5-14  determines whether to appoint a temporary guardian; or

5-15      (3) Giving notice to the persons entitled to notice pursuant to NRS

5-16  159.047 is not feasible under the circumstances.

5-17    2.  [If] The court may appoint a temporary guardian to serve for 10

5-18  days if the court:

5-19    (a) Finds reasonable cause to believe that the proposed ward is unable to

5-20  respond to a substantial and immediate risk of [financial loss or] physical

5-21  harm or to a need for immediate medical attention; and

5-22    (b) Is satisfied that the petitioner has tried in good faith to notify the

5-23  persons entitled to notice pursuant to NRS 159.047 or that giving notice to

5-24  those persons is not feasible under the circumstances, or determines that

5-25  such notice is not required pursuant to subparagraph (2) of paragraph (b) of

5-26  subsection 1 . [. ,

5-27  the court may appoint a temporary guardian to serve for 10 days. The court

5-28  shall limit the temporary guardian’s powers to those necessary to assist in

5-29  the emergency.]

5-30    3.  Except as otherwise provided in subsection 4, after the appointment

5-31  of a temporary guardian, the petitioner shall attempt in good faith to notify

5-32  the persons entitled to notice pursuant to NRS 159.047. If the petitioner

5-33  fails to make such an effort, the court may terminate the temporary

5-34  guardianship.

5-35    4.  If, before the appointment of a temporary guardian, the court

5-36  determined that advance notice was not required pursuant to subparagraph

5-37  (2) of paragraph (b) of subsection 1, the petitioner shall notify the persons

5-38  entitled to notice pursuant to NRS 159.047 without undue delay, but not

5-39  later than 48 hours after the appointment of the temporary guardian or not

5-40  later than 48 hours after he discovers the existence, identity and location of

5-41  the persons entitled to notice pursuant to that section. If the petitioner fails

5-42  to provide such notice, the court may terminate the temporary

5-43  guardianship.

5-44    5.  Within 10 days after the appointment of a temporary guardian

5-45  pursuant to subsection 2, the court shall hold a hearing to determine the

5-46  need to extend the temporary guardianship. Except as otherwise provided

5-47  in subsection [6,] 7, if the court finds by clear and convincing evidence that

5-48  the proposed ward is unable to respond to a substantial and immediate risk

5-49  of [financial loss or] physical harm or to a need for immediate medical

6-1  attention, the court may extend the temporary guardianship until a general

6-2  or special guardian is appointed, but not for more than 30 days. [The]

6-3    6.  If the court appoints a temporary guardian or extends the

6-4  temporary guardianship pursuant to this section, the court shall limit the

6-5  [temporary guardian’s] powers of the temporary guardian to those

6-6  necessary to [assist in the emergency.

6-7    6.] respond to the substantial and immediate risk of physical harm or

6-8  to a need for immediate medical attention.

6-9    7.  The court may not extend a temporary guardianship pursuant to

6-10  subsection 5 beyond the initial period of 10 days unless the petitioner

6-11  demonstrates that:

6-12    (a) The provisions of NRS 159.0475 have been satisfied; or

6-13    (b) Notice by publication pursuant to N.R.C.P. 4(e) is currently being

6-14  undertaken.

 

6-15  H