Nevada Guardianship Annual Accounting

The Nevada guardianship annual accounting is due annually within 60 days of the anniversary of the appointment of the guardian. NRS 159.177(1).  The anniversary date of the guardianship is  calculated from the date of the hearing where the guardian is appointed, not the date the order is entered (there is sometimes a delay).

Annual Accounting Due Date Doesn’t Change

So, for example, if Bob was appointed guardian of Jane’s estate by the Clark County Guardianship Court on July 1, 2013, the anniversary date of the guardianship is July 1.  The annual accounting is due 60 days after the anniversary date, August 30.  Thus, the annual accounting is due in this hypothetical on August 30, 2014; August 30, 2015; and August 30, 2015 and so on.

Let’s say, however, that the 2014 annual accounting is filed late on September 30, 2014.  Is the 2015 accounting due on August 30, 2015 or September 30, 2015? At a recent Guardianship Bench-Bar meeting, Clark County Guardianship Judge Cynthia Dianne Steel confirmed that because the anniversary date doesn’t change, the due date for the annual accounting also does not change.  Thus, in the hypothetical above, the next annual accounting would be due August 30, 2015 even though it would be less than a year since the last accounting.  Similarly, if a successor guardian is appointed, the anniversary date and annual accounting due dates don’t change.

If a guardian is over due for more than one annual accounting, each annual accounting must be filed separately.  Don’t file multiple annual accountings in a single filing.   If a guardian has a current accounting and a deficient accounting due, they need to be filed separately.

In addition to an annual accounting, a guardian must also provide an accounting to the Clark County Guardianship Court upon resignation of the guardian, within 30 days of removal of the guardian by the Court, or within 90 days after termination of the guardianship or death of the ward.  The Court also has discretion to order an accounting of the guardian at any time it wishes.  NRS 159.177.

Annual Accounting Contents

The annual accounting filed with the Court must include the following information:

  • “The period covered by the account.” NRS 159.179(1)(a).
  • “All cash receipts and disbursements during the period covered by the account.” NRS 159.179(1)(b).
  • A statement of the status of all creditor claims filed against the guardianship estate as well as any action taken as to those claims. NRS 159.179(1)(c).
  • “Any changes in the ward’s property due to sales, exchanges, investments, acquisitions, gifts, mortgages or other transactions which have increased, decreased or altered the ward’s property holdings as reported in the original inventory or the preceding account.”  NRS 159.179(1)(d).
  • Finally, the catch-all: “Any other information the guardian considers necessary to show the condition of the affairs of the ward.”  NRS 159.179(1)(e).

As to the catch-all at the end, it’s always best to err on the side of disclosure to the Court.  More transparency protects both the ward and the guardian.  The ward is protected from exploitation.  The guardian is protected from allegations of misconduct.  Additionally, more information allows the Court to make better, informed decisions on behalf of the ward.

The guardian is not required to file supporting documentation with the accounting, like receipts. However, he or she is required to retain them because the Court or an interested person (like a family member) could demand their production. NRS 159.179(3).

The annual accounting must be noticed up for a hearing in front of the Clark County Guardianship Court.  “Any interested person may appear at the hearing and object to the account or file written objections to the account prior to the hearing.” NRS 159.181(1).  “If there are no objections to the account or if the court overrules any objections, the court may enter an order allowing and confirming the account.” NRS 159.181(2).  However, if an objection is made and the Court finds that it was baseless, the Court may award attorneys’ fees and costs.  NRS 159.181(3).

An annual accounting must by filed by the guardian with the Clark County Guardianship Court.
An annual accounting must by filed by the guardian with the Clark County Guardianship Court.

 

Adam Laxalt Joins Fight Against Unethical Nevada Guardians

From Nevada Attorney General Adam Laxalt’s Website:

March 31, 2016

Las Vegas, NV – Today, Nevada Attorney General Adam Paul Laxalt, Las Vegas Metropolitan Police Sheriff Joseph Lombardo and Clark County District Attorney Steve Wolfson announced an ongoing joint investigative and prosecution team to help combat guardianship and elder exploitation in Nevada. Assembled last summer, the team coordinates local and state efforts to investigate alleged instances of financial exploitation by court-appointed guardians.

“I am proud to partner with local law enforcement in a collaborative manner to address the growing problem of guardianship exploitation and financial fraud,” said Attorney General Adam Laxalt. “I applaud the good work of Justice Hardesty and his Guardianship Commission, and my Office looks forward to continued insight from this group over the coming months.”

“It is a sad day when some of our most vulnerable citizens are denied basic human rights by the very people appointed to protect them,” said Las Vegas Metropolitan Police Sheriff Joseph Lombardo. “When these crimes come to our attention, we are diligent in investigating them. Many of these cases involve elderly people who die confused, alone, in pain and penniless. No one should go through that.”

“Investigating and prosecuting these types of cases is a priority to us all,” said Clark County District Attorney Steve Wolfson. “Our ongoing involvement in this joint effort further emphasizes that abuse of power by those appointed to protect our vulnerable citizens will not be tolerated in our community.”

Cases investigated in Clark County will be sent to the Clark County District Attorney’s Office to make charging decisions. Should they proceed with charges, cases will be jointly prosecuted by the Clark County District Attorney’s Office and the Office of the Nevada Attorney General.

On April 4, 2016 the Las Vegas Review-Journal issued an editorial praising AG Laxalt for joining the effort to protect Nevada’s most vulnerable seniors:

A state Supreme Court panel moved closer last week to proposing a series of reforms designed to protect vulnerable seniors from predators masquerading as their protectors. Meanwhile, Nevada Attorney General Adam Laxalt announced the formation of a task force to coordinate law enforcement efforts to investigate and prosecute such cases.

Both are welcome developments.

The moves stem in part from a Review-Journal series highlighting dysfunction in Clark County’s guardianship system, which exists to safeguard the assets of senior citizens whom courts have determined can no longer manage their own affairs. In some cases, however, those appointed to look after the financial assets of the infirm or incapacitated used their access to raid bank accounts, sell property or otherwise drain the resources of the person they were charged with sheltering.

Even more distressing, many of these so-called guardians are family members.

Such cases are difficult to prosecute because the victims are often intimidated into silence or unable to cooperate with the authorities.

Guardianship Bench-Bar Meeting on April 18

Judge Cynthia Dianne Steel
Judge Steel addresses a recent Guardianship Bench-Bar Meeting. Image Courtesy of EighthJDCourt Blog.

The next Guardianship-Bench Bar meeting will be held April 18, 2016 at Zenoff Hall at the Family Court and Services Center, 601 North Pecos Road Las Vegas, NV 89101.  The meeting will be held from 11:30-1:30 PM.  Two free CLE credits will be given.

Nevada Guardianship Budget

A Nevada Guardianship budget should be filed with the Clark County Guardianship Court at the time the inventory is due.  This requirement comes from Clark County Guardianship Judge Cynthia Dianne Steel, who discussed it at the recent Guardianship Bench-Bar meeting.

Judge Steel addresses a recent Guardianship Bench-Bar Meeting
Judge Steel addresses a recent Guardianship Bench-Bar Meeting. Image Courtesy of EighthJDCourt Blog.

Nevada Guardianship Budget: Timing & Content

Judge Steel says that while there is no currently no statutory requirement for a budget, she wants one filed in every guardianship within the time frame the inventory must be filed.  The guardian must “file in the guardianship proceeding a verified inventory of all of the property of the ward” within 60 days of their appointment as guardian.  NRS 159.085(1). Thus, the budget must be filed within 60 days of appointment of the guardian. The budget can be filed separately or as a part of the inventory. Budgets only need to be done once at the beginning of the guardianship. They don’t need to be resubmitted each year.  Like an inventory, they don’t need to be noticed up for approval, you just submit them to the court.

Also, to the extent that a third party (like a family member or a trust) is paying for the expenses of a ward, that income should be included in the budget even though the income is not, at any point, an asset of the guardianship estate.

A Nevada Guardianship Budget Protects Guardians and Wards

Judge Steel has instituted this requirement in part because should there be allegations of missing money later in the guardianship, a budget of baseline monthly expenses helps to determine if, in fact, there is money missing. For honest and ethical guardians, the budget requirement protects them from spurious accusations.  At the same time, the budget requirement protects wards (the individuals for whom the guardianship has been instituted) from malfeasance or exploitation by unscrupulous guardians.

Judge Steel gave the example of a ward with $6000 in income and a $5000 budget.  If, after 5 years, an interested party raises a question about missing money, the Court will initially look to the $1000 a month surplus rather than the entire $6000.

Judge Steel anticipates there may be a statutory requirement for a budget after the next session of the Nevada Legislature (2017).

A Nevada Guardianship budget should be filed with the Clark County Guardianship Court at the time the inventory is due.
A Nevada Guardianship budget should be filed with the Clark County Guardianship Court at the time the inventory is due.

Nevada Guardian Helen Natko Faces Criminal Charges

From KTNV:

Terri Black’s father, Del, was deemed incompetent and the court got involved when Terri suspected Del’s long-time companion, Helen Natko, of taking his money.  Despite hours of testimony in family court, Helen was appointed to be Del’s guardian.

“This whole ordeal has cost our family $826,000 as of this date,” says Rick Black. “And that is a travesty that you have to spend that kind of money to defend your family against a crook.”

Large amounts of money were transferred from Del’s accounts to Helen’s. The Blacks say Family Court Hearing Master Jon Norheim and Judge Charles Hoskin ignored evidence — the same evidence that the district attorney felt warranted felony charges of theft and exploitation.

On Monday, a judge decided those charges will stick.

Nevada Elder Abuse Criminal and Civil Liability

In Nevada, exploitation of a vulnerable person gives rise to both civil and criminal liability.  “…if an older person or a vulnerable person suffers a personal injury or death that is caused by abuse or neglect or suffers a loss of money or property caused by exploitation, the person who caused the injury, death or loss is liable to the older person or vulnerable person for two times the actual damages incurred by the older person or vulnerable person.”  NRS 41.1395(1).

Criminally, conviction of exploitation of an elderly person may result in a prison sentence of up to 2-20 years and up to a $25,000.00 fine, depending upon how much money or assets are stolen.  NRS 200.5099Recently, District Attorney Steve Wolfson announced that his office has created an Elder Abuse Section:

Two Deputy District Attorneys are now dedicated to the prosecution of elder abuse, vulnerable adult abuse and major fraud crimes.

These crimes require a more focused and specialized area of law. In 2014, there were 61 cases submitted by law enforcement which qualified to be charged as elder abuse crimes. In the first six months of 2015, there were 32 of these types of cases submitted.

The announcement also received coverage in the Las Vegas Review-Journal. Wolfson’s elder abuse unit announcement comes after a series of in-depth investigation articles in the Las Vegas Review-Journal on elder abuse and other forms of exploitation.   Those articles included coverage of work and cases done by the firm I work for, Goodsell & Olsen, LLP.

District Attorney’s Allegations Against Helen Natko

From the Criminal Complaint (which can be seen in full below):

Amended Criminal Complaint, State of Nevada v. Helen Natko, Case No. C-16-313574-1
Amended Criminal Complaint, State of Nevada v. Helen Natko, Case No. C-16-313574-1

According to briefs filed by the District Attorney’s office, Del Mencarelli and Helen Natko were close friends who lived together on at least a part time basis.   These are the allegations made by the District Attorney’s office in one of their briefs:

The allegations in the instant case are that between the dates of August 1, 2011 and August 31, 2013 Helen Natko exploited Delford Mencarelli of $25,000.00, and then another $195,000.00 later in the timeframe. The evidence has shown and will show the following circumstances.

Delford Mencarelli is the father of Terri Black. Terri Black is Delford Mencarelli’s only child. Terri Black is married to Richard Black, and they have a son named Daniel Black. Daniel Black is Delford Mencarelli’s grandson.

Delford Mencarelli’s wife passed in approximately 1980. Helen Natko’s husband similarly passed away in the same general timeframe. Both Delford Mencarelli and Helen Natko lived in Pennsylvania, but in different towns. Delford Mencarelli and Helen Natko never resided in the same home in Pennsylvania, but they were friends and dated each other between 1982 and 1992.

In 1992, Helen Natko moved to Las Vegas, Nevada. She sold her home in Pennsylvania and purchased a home in Las Vegas. Delford Mencarelli remained and continued to live in Pennsylvania.

Between 1992 and 2002 Delford Mencarelli travels every other year during the cold months of the year to Las Vegas and stays with Helen Natko. This accounts for 4 to 5 trips to Las Vegas during that decade span.

In 2000, Delford Mencarelli adds his daughter Terri Black as a joint account holder over his Citizen’s bank accounts. This is done as a precautionary measure as her father is advancing in age.

In 2002, Delford Mencarelli decides to move to Las Vegas and will reside with Helen Natko. Delford Mencarelli sells his Pennsylvania home, and arranges to pay rent to Helen Natko in the amount of $700/mo. Terri Black states that the Delford Mencarelli’s estate including the sale of the Pennsylvania home at that time was approximately $500,000.00.

At the time of the move, Delford Mencarelli is approximately 72 years old. In addition to his savings, he receives a pension from the Power Company, and social security. The pension is approximately $928.00, the social security payment is approximately $1211.00.

While Delford Mencarelli is living in Las Vegas, Nevada his daughter and family visit him about once a year, normally coinciding with Spring Break due to Terri’s son being in school. In addition to the visits, Terri speaks with her father normally once a week, usually on the weekends.

In 2008 a Plus Credit Union bank account is opened in Las Vegas by the Delford Mencarelli. From this point forward his pension check is deposited and cashed through this account, and the social security check still goes to Citizens Bank.

In April of 2011 Terri and Rick Black fly Delford Mencarelli and Helen Natko to visit them in North Carolina for Easter. Delford Mencarelli at this time was 80 years old, and was noticeably slowing down. Helen Natko claims that Delford Mencarelli needs hearing aids, and tries to make Delford Mencarelli wear them – Delford Mencarelli refuses and denies hearing issues.

During time alone with the Delford Mencarelli, Terri reiterates long term planning and care goals. She suggests that they (Rick and Terri) could purchase a condo for Delford Mencarelli and Helen Natko to live in in North Carolina so that they could be closer. Delford Mencarelli refuses the offer, as does Helen Natko when separately proposed to her.

As can be seen during the April 2011 visit, Helen Natko and Delford Mencarelli bicker and argue quite a bit.

On July 19,2011 Dr. Shauna Christiansen-Thistle conducts a Mini Mental Status exam on Delford Mencarelli. He scored a 12 out of 30. Dr. Christiansen-Thistle refers Delford Mencarelli to a Neurologist. Dr. Christiansen-Thistle said that Delford Mencarelli was not capable of balancing a checkbook, writing out bills, or being organized in a fashion that it would take to manage his financial condition.

On August 4,2011 $20,000.00 is transferred from Citizen’s bank to plus Credit Union, Terri Black is unaware and not made aware that this has occurred.

On August 15, 2011 $5,000.00 is withdrawn from Delford Mencarelli’s Plus Credit Union account. Terri Black is unaware and not made aware that this has occurred.

On October 14, 2011 Delford Mencarelli was seen by Dr. Howard Ehrenfeld, a Neurologist. Delford scored a 13 out of 30 on the Mini Mental Status Exam. Dr. Ehrenfeld notes that Delford Mencarelli has had difficulty with his memory for about three years, and that his significant other handles the finances.

On November 1,2011 $15,000.00 is withdrawn from Delford Mencarelli’s Plus Credit Union account. Terri Black is unaware and not made aware that this has occurred. In May of 2012 Delford Mencarelli and Helen Natko travel to Pittsburg to visit each other’s relatives. Delford Mencarelli is hospitalized during the stay due to complications with medication and his diabetes. Terri Black is only made aware of Delford Mencarelli’s hospitalization due to calling her Aunt. After several attempts to call Helen Natko, she finally answers and explains that he was in the hospital.

In July 2012 in Las Vegas, Delford Mencarelli is hospitalized in Las Vegas. Terri Black is never notified by Helen Natko that her father was in the hospital.

On July 23, 2012 $150,000.00 is transferred from Citizens Bank to the Plus Credit Union. On the same date, Helen Natko is added as joint account holder with Delford Mencarelli. On September 5, 2012 $5,000.00 is withdrawn from Delford Mencarelli’s Plus Credit Union account. Terri Black is unaware and not made aware that this has occurred.

In March of2013, Helen Natko calls Terri and says, ‘Come get your father – he hasn’t paid rent this month’. Terri finds this odd, because Helen Natko is known to bring Delford Mencarelli to the bank to cash his pension check, and he hands over the $700.00. Terri spoke to Helen Natko the next day, she explained that it was just a bad day – they are ok. Terri expressed that she was more than willing to take her father to live with her in North Carolina.

On April 26, 2013 $50,000.00 is transferred from Citizen’s Bank to Delford’s Plus  Credit Union Account (now joint with Helen).

On June 4, 2013 a $500 check is received by Daniel Black allegedly from Delford Mencarelli for graduation from high school. Terri Black immediately recognizes that it is not Delford Mencarelli’s handwriting on the check. Terri was also puzzled because Delford always sent a card and cash, not a check.

On or around June 15,2013 Terri Black went to the Pittsburg area to attend a funeral. Because ofthe geographic location of Citizens bank, she is finally able to go to a branch  and request statements. While viewing the statements from Citizens Bank, she discovers disbursements of $50,000 twice (one returned due to non-sufficient funds).

Upon reviewing earlier statements she discovers transactions of$20,000 and $150,000.

On June 22, 2013 Terri Black calls Delford Mencarelli. Terri spoke about the funeral and made other small talk with her father, and then approached the subject of the large

15 money transfers. Terri asks about the $200,000 leaving Citizen’s bank. Delford says emphatically and repeatedly “no, all my money is in Citizen’s Bank”. Helen Natko is also on the phone, and chimes in first ‘we moved the money’ suggesting it to Delford. Helen then accuses Terri, stating ‘why should you have it all?’ Helen Natko says, ‘come get your father, I am putting him on a plane’. Terri explained after several calls that she would come get her father the next day.

Still on June 22, 2013 Terri calls LVMPD after the events transpire to do a well check on Delford.

On June 23,2013 Terri and Richard Black arrive in Las Vegas with a one-way ticket for Delford to go to North Carolina with them. Helen Natko refuses to release Delford, and will not even allow Terri to speak in private with her father. Delford looks disheveled. The police are unable or unwilling to assist.

On June 27, 2013 Terri and Richard Black file a petition for appointment of guardian  based upon the abovementioned conduct.

On July 5, 2013 Helen Natko transfers $195,000.00 from Delford Mencarelli’s Plus Credit Union Account to an account where the only account holder is Helen Natko.

On August 19, 2013 Delford Mencarelli is evaluated again by Dr. Ehrenfeld. He scores a 10 out of 30 on the Mini Mental Status Exam. On April 17, 2014 the Las Vegas Metropolitan Police Department begins an investigation into Elderly Exploitation regarding Helen Natko’s actions with the Delford Mencarelli’s finances.

Douglas Winters, CPA will testify that during the relevant years, Helen Natko’s  gambling, and more importantly gambling losses far outpaced her income.

A guardianship trial started on Jun 5, 2014 and took place over the course of 11 non-consecutive days. During the guardianship trial the hearing master, Jon Noeheim, allowed hearsay evidence of the Delford Mencarelli’s wishes to be presented by Helen Natko and Denise Comastro (private professional guardian), but restricted Terri and Richard Black and Delford’s other relatives from presenting hearsay of the Delford Mencarelli’s wishes.

On July 11, 2014 the Guardianship Commissioner Jon Norheim issued a written decision ordering that Helen Natko to have sole guardianship over the person and estate of Delford Mencarelli. The order is finalized on August 5, 2014.

On June 1,2015 Commissioner Norheim is removed from all guardianship matters by the Eighth Judicial District Court. Subsequently, Judge Charles Hoskins is removed from being an alternate or appellate judge over guardianship cases. These changes were due to long standing complaints from the Blacks and others about the way Commissioner Norheim conducted proceedings, decisions, and many alleged frauds being perpetrated against wards by guardians. Guardianship cases were reassigned to Judge Cynthia Dianne Steele. Additionally, Chief Justice Hardesty sets up a commission to make improvements to the guardianship process in Nevada. On June 23,2015 Judge Steele held her first hearing in Delford Mencarelli guardianship case. Judge Steele reversed and changed the guardianship order to make Helen Natko and Terri Black co-guardians.

On July 3, 2015 Delford Mencarelli passed away.

 

Clark County Guardianship Court Proposed Rule Changes

There have been proposed changes to the local guardianship rules (EDCR Section 5) in Clark County Guardianship Court.
There have been proposed changes to the local guardianship rules (EDCR Section 5) in Clark County Guardianship Court.

The Clark County Guardianship Court has undergone significant changes during the past year.  Guardianship cases have been reassigned from a special master to Judge Cynthia Dianne Steel. The Nevada Supreme Court has created a commission to investigate problems and propose changes to Nevada’s guardianship system.  Recently, a committee of that commission provided proposed changes to Section 5 of the Eighth Judicial District Court local rules, which govern guardianship proceedings.  A copy of the proposed changes is below.

 

Nevada Guardianship of the Person, Estate or Both

A Nevada guardianship may be established for the person only (called the “ward”), the estate only (the assets and property of the ward) or of both the person and estate.  A guardian of the person is responsible for the ward’s physical well-being, including housing, food, medical needs and the like. A guardian of the estate is responsible for managing the finances, property and assets of the ward.  Sometimes, a guardianship of only the person will be instituted where the ward has the ability to manage his or her finances, but not their medical needs. In contrast, a guardianship of only the estate may be instituted where the ward is able to take care of their physical needs but unable to competently manage finances and assets.  In other instances, it may be appropriate to institute both a Nevada guardianship of the person and estate.  See generally NRS 159.0487.

Nevada guardianship may be of the person or estate. A Nevada guardianship may also be granted on a temporary basis.
Nevada guardianship may be of the person or estate. A Nevada guardianship may also be granted on a temporary basis.

Temporary Nevada Guardianship

The need for a Nevada guardianship can sometimes occur abruptly and without warning.  When there is an emergency or the need for a guardianship is immediate, the court can appoint a temporary guardian without a hearing.  This is done through an ex parte petition.  Ex parte means “Done by, for, or on the application of one party alone.”  In other words, a single party (usually a family member, spouse or friend) files a petition and asks the Court to be immediately appointed guardian without a hearing. An ex parte petition for temporary guardianship is an extraordinary remedy.  The freedom and liberty of the proposed ward is at stake without an opportunity for the proposed ward to speak or oppose the ex parte petition.  Thus, the Court is extremely skeptical of these types of petitions and will only grant them if the Court is convinced the need for a temporary guardianship is immediate and compelling.

If seeking a temporary Nevada guardianship of the person, the ex parte petition must include a statement from a Nevada licensed physician that the proposed ward is unable to respond to a “substantial and immediate risk of physical harm or needs medical attention and lacks capacity” to respond to their own needs. NRS 159.023.  For a temporary Nevada guardianship of the estate, the ex parte petition must include a physician’s statement “that the proposed ward faces a substantial and immediate risk of financial loss and lacks capacity to respond to the risk of loss.”  NRS 159.025.

If a temporary guardian is appointed, there must be a hearing within 10 days to determine whether or not the guardianship will continue.   At that hearing, the Court may make the guardianship permanent.  Most likely, however, the temporary guardianship will be extended to allow time to determine whether the guardianship should become permanent. NRS 159.025(5)/NRS 159.023(5).

Summary Nevada Guardianship

Often, a ward will have very modest assets. In order to save the ward money, the Court may institute a summary guardianship. “The court may grant a summary administration if, at any time, it appears to the court that after payment of all claims and expenses of the guardianship the value of the ward’s property does not exceed $10,000.”  NRS 159.076(1).  In summary guardianship, the Court may relieve the guardian of the duty to file annual accountings and/or to provide notice prior to taking certain actions. NRS 159.076(2)(a).

General Guardianship

The Court may order a permanent guardianship that is not a summary guardianship.   These are general guardianships. In a general guardianship, the guardian must file an inventory of the ward’s assets within 60 days of their appointment.  The guardian must also file an annual accounting and report of the guardian with the Court on the anniversary of their appointment as guardian.