Imagine a world where a stranger could come into your house while you’re sipping your morning coffee. You open the door and are immediately escorted to a waiting car. The stranger sells all of your belongings, your car, your lifetime of mementos, and your home. You are isolated from the rest of your family, unable to call your children, or anyone for guidance or assistance. Imagine the pain you are put through as this ordeal lingers, and imagine this stranger gets paid throughout this entire process. All the while, you remain voiceless.
This story may sound like fiction, but this situation has occurred in Nevada. In the ideal world, guardianship is a tool intended to help people who can no longer make decisions independently. Ideally, a guardian is appointed to make decisions on behalf of a protected person and does just what the name dictates, guards the protected person. In the past, many guardianships failed. The protected persons lost their freedoms without the opportunity to appear in court. The protected persons were placed in guardianships without notice of a hearing and without an attorney.
To address the abuses in guardianship, in 2015, the Supreme Court of Nevada created a commission to study the creation and administration of guardianships. Chief Justice James W. Hardesty chaired the commission. Its membership included Nevada Court of Appeals Chief Judge Michael Gibbons, district court judges throughout Nevada, Debra Bookout, private bar members, nonprofit stakeholders, and private guardians. The commission worked through the end of 2016, providing ideas and solutions to revamp guardianship in Nevada. In its final report, the commission made numerous recommendations, including a proposed Guardianship Bill of Rights.
During the 2017 Nevada Legislative Session, the legislature passed Senate Bill 360, the Protected Person Bill of Rights. This Bill of Rights provided anyone under guardianship or facing a potential guardianship with 19 protected rights. These rights include the right to counsel, the right to receive notice of all guardianship proceedings, the right to remain as independent as possible, the right to visitors, the right to be treated with respect and dignity, and the right to be in the least restrictive environment possible.
Courts around Nevada immediately started posting these rights in their courtrooms, and the right to counsel began. Clark County began to appoint counsel to every person in a guardianship case.
While the guardianship commission began its study of guardianship fraud, the Legal Aid Center of Southern Nevada began exploring ways to provide independent counsel to protected persons. In 2016, Legal Aid Center created a Guardianship Advocacy Program. Within the year, the program had three full-time attorneys representing protected persons facing guardianship. The courts referred only the most severe cases for representation during this time. After the legislature passed SB 360, the courts referred every guardianship matter for representation. Today there are 18 attorneys in the Guardianship Advocacy Program at Legal Aid Center dedicated to protecting persons under guardianship. Staff attorneys represent over 2,100 adult protected persons in Clark County.
Nevada is now a leader in guardianship reform. But why should we stop there? Adult guardianship cases are not the only type of guardianship. There are also minor guardianship cases. A minor guardianship may be needed when a parent is unable to make decisions/care for their children. Legal Aid Center represents minors facing guardianship through the citation hearings. These cases are relatively quick and an excellent opportunity for busy pro bono attorneys to get involved.
In both minor and adult guardianship cases, the role of the pro bono attorney is simple. Zealous advocacy under a client-directed model. The client directs the attorney, who then zealously advocates for the client’s desires. The attorney and the guardian may not always agree with the protected person’s wishes, so the final determination is left to the judge. The vital aspect of this program is giving the protected person a voice. The protected person is no longer alone when a pro bono attorney accompanies them. The protected person is no longer voiceless!
While Legal Aid Center tries to represent every protected adult or child in a guardianship matter, sometimes there may be conflicts that prevent it from doing so. Interested pro bono attorneys can volunteer to provide a voice to an adult or minor to ensure their rights are protected. We offer training, draft pleadings, a manual, a CLE on guardianship, and a mentor. If you are interested in providing a voice to a protected person, don’t hesitate to call our office.
About the author
Michael Wendlberger, Esq. is the Director of the Pro Bono Project at Legal Aid Center of Southern Nevada. The Pro Bono Project pairs volunteer attorneys with screened clients in the areas of family, consumer, landlord tenant, civil rights, immigration, bankruptcy, and other areas of law. Interested attorneys should contact Michael at 702 386-1429 or email@example.com.
About this article: This article was originally published in the “Pro Bono” issue of Communiqué, the official publication of the Clark County Bar Association, (December 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-december-2021/.
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