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GUARDIANSHIP "Substituted Judgment' or 'Best Interests"

Courts have created two standards when reviewing the actions of a guardian over his/her ward. The rules used by the court can be either one of “substituted judgment” or of “best interests.” Both rules came about from an effort to balance the competing public policy goals of maximizing the independence of a ward, while simultaneously assuring protection of the social and economic interests of the ward.

Under the substituted judgment rule, the court will first seek to give effect to the clear intent of the ward as expressed by his/her conduct and statements, or memorialized in any written documents made while competent.

By contrast, courts apply the best-interests standard when the ward has never been competent or where there is no earlier expression of the ward’s preferences. In these cases, whenever a ward’s wishes are unknown or unclear, the court will seek the option that best protects the ward’s continued well-being.

Most states, including Nevada, require the court to first apply the substituted judgment rule, and only if the ward’s pre-incapacity preferences are unknown will the court resort to using the more objective best-interests standard.

In many situations both standards are used by the court, because there are often situations where only some of the ward’s pre-incapacity wishes are known. This is particularly true as to medical decisions. Often people have written powers of attorney for health care or living wills. These documents carry great credence with the guardianship court and the court will then use the substituted judgment rule. Correspondingly, people are sometimes less clear as to who, or in what manner, their financial affairs should be attended. In those instances, the court will use a best-interests standard.

To avoid problems, the best course of action is for individuals to properly memorialize and document their wishes for both medical and financial decisions.

At the Las Vegas, NV Law Firm of Jeffrey Burr, we represent clients throughout Southern Nevada, including in Overton, Logandale, Mountain’s Edge, Henderson, Aliante, Boulder City, North Las Vegas, Mesquite, Pahrump, Summerlin, Southern Highlands, Green Valley, Laughlin, Clark County, Nye County and Lincoln County.

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