IN RE: GUARDIANSHIP OF RUBIN

137 Nev., Advance Opinion .27
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF THE No. 80300
GUARDIANSHIP OF THE PERSON
AND ESTATE OF IDA RUBIN, AN
ADULT PROTECTED PERSON.
FILE
JASON RUBIN,
Appellant, JUL 0 1 2021
vs. ELI
IDA RUBIN; AND MARK RUBIN, CLE
BY
Respondents. IEF DEPUTY CLERK
Appeal from a district court order denying a guardianship
petition. Eighth Judicial District Court, Family Division, Clark County;
Linda Marquis, Judge.
Affirmed.
Solomon Dwiggins & Freer, Ltd., and Alan D. Freer, Mark A. Solomon, and
Ross E. Evans, Las Vegas,
for Appellant.
Hutchison & Steffen, PLLC, and Michael K. Wall, Las Vegas,
for Respondent Ida Rubin.
Grant Morris Dodds, PLLC, and Jason M. Aivaz, Henderson,
for Respondent Mark Rubin.
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BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, HARDESTY, C.J.:
NRS 159.044(2)(i)(1) provides that a petition for adult
guardianship must include a certificate from a physician or a qualified
individual demonstrating need for a guardianship. We conclude that this
certificate is required for the district court to consider the petition but the
certificate does not need to be based on an in-person examination of the
proposed protected person. Furthermore, whether the petition and
certificate warrant the need for a guardianship or further proceedings is
within the sound discretion of the district court. In this case, we conclude
that although the district court relied on the wrong reasoning, the district
court ultimately did not abuse its discretion when it dismissed the
guardianship petition because the petition did not demonstrate that the
proposed protected person was incapacitated.
FACTS AND PROCEDURAL HISTORY
Appellant Jason Rubin filed a petition for appointment of
temporary guardian and to establish a general permanent guardianship
over his mother, respondent Ida Rubin. Jason's petition requested a
guardianship over Ida's estate and her person.2 In his petition, Jason
-Jason and his wife jointly requested a guardianship over Ida;
1
however, only Jason filed a notice of appeal. Thus, we only refer to Jason
in this appeal.
Jason has not alleged any financial harm to warrant a guardianship
2
over Ida's estate, and Jason's counsel acknowledged at oral argument that
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alleged that Ida suffered from paranoid schizophrenia and that her mental
health was declining. Jason attached to his petition call logs from the Las
Vegas Metropolitan Police Department (LVMPD), as well as incident
reports from the security team at Ida's residence, Securitas USA, which
detailed events where Ida would ask the officers to perform nonsensical
acts.3 Ida objected to Jason's petition for guardianship, attesting that she
was "competent enough to handle [her] own medical and financial affairs."
Respondent Mark Rubin, Ida's son and Jason's brother, joined Ida's
objection to Jason's petition for guardianship. The district court held a
hearing and denied the petition without prejudice, finding that under NRS
159.044(2)(i)(1) a guardianship over an adult proposed protected person
cannot be granted without a physician's certificate. The district court
ordered that Jason could refile the petition if he was able to obtain a
physician's certificate.
Thereafter, Jason filed a "Petition for Rehearing and
Reconsideration of Petition for Appointment of Guardians of the Person and
Estate of Ida Rubin." The petition for rehearing incorporated the first
guardianship petition, alleging the same facts, but it also included a
physician's certificate prepared by Dr. Gregory P. Brown. Dr. Brown
the guardianship petition only concerned Ida's person. Thus, we only
address the guardianship petition over Ida's person, not her estate.
3Some of these acts included "check [ing] her home for
drugs; . . . speak[ing] with golfers near hole #12 who she feels [are the Los
Angeles Police Department (LAPD)]"; . . . to conduct a perimeter check due
to LAPD being on her property; [and] to assist with overhead flying planes
which she alleges [are] burning her face." Securitas USA also reported that
Ida stole a golf flag from the twelfth hole, approached golfers, and started
yelling at them.
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reviewed the LVMPD's call logs, the original petition for appointment of
guardianship, and email correspondence from Securitas USA to make his
evaluation. Dr. Brown did not personally evaluate Ida. However, based
upon his review of the information provided to him, Dr. Brown opined in the
certificate that the "series of events [reviewed] . . . strongly suggest[s] the
presence of psychosis [a substantial break in the perception of consensual
reality]." (Third alteration in original.) Dr. Brown further stated that he
believed that Ida's "delusional beliefs . . . placed her at risk of harm [either
to self or others]." (Alteration in original.) Dr. Brown recommended that
Ida "receive a complete neurological evaluation and a complete psychiatric
evaluation to assess her mental functioning and possible need for
treatment . . . [, which] could also provide further data to support [a] need
for [a] guardianship."
At a hearing on the rehearing petition, the district court
entertained arguments from both parties counsel, but no evidence was
offered or admitted. Despite the physician's certificate, the district court
denied the petition and did not appoint a guardian over Ida or her estate.
The district court reasoned that the physician's certificate Jason attached
to his petition for rehearing was insufficient because it "was based on
hearsay and double hearsay" and "was made without having seen [Ida]."
The district court also found that, although "there is a concern for [Ida]'s
well being and safety, . . . [the] guardianship may not be necessary because
there are less restrictive means in place," referring to the fact that Mark is
listed as Ida's attorney-in-fact in her power of attorney. In declining to
reconsider the guardianship petition, the district court ordered that it would
"not open discovery or require a[ medical] evaluation of . . . I[da] . . . as it is
an inappropriate shifting of the burden." Jason appealed.
4
DISCUSSION
This court has jurisdiction over the appeal
As an initial matter, we must decide whether Jason's appeal
was timely filed. Ida argues that the district court's first order, which
denied the guardianship petition, was the final, appealable judgment.
Because Jason filed an appeal only from the district court's second order,
which denied the rehearing petition, Ida contends that his appeal was
untimely filed. Conversely, Jason argues that the first order denying his
petition for guardianship was not a final order and was therefore not
appealable.
We conclude that the district court's first order essentially
dismissed the guardianship petition with leave to amend, making it an
interlocutory, nonappealable order. See Bergenfield v. BAC Horne Loans
Servicing, LP, 131 Nev. 683, 685, 354 P.3d 1282, 1284 (2015) (holding that
"a district court order dismissing a complaint with leave to amend is not
final and appealable"). At the guardianship petition hearing, Jason asked
the district court if it could give him time to obtain a physician's certificate
before dismissing the petition. The district court responded that it was not
dismissing the petition, but rather, was denying it until Jason could refile
with a physician's certificate. The written order expressly stated that the
denial was without prejudice and Jason could refile the petition if he
obtained a physician's certificate. Although the district court did not
explicitly characterize its order as one allowing leave to amend, it can be
implied from the effect of the order and from the district court's reasoning
at the hearing on the guardianship petition. See id. at 684, 354 P.3d at 1283
(stating that "[t]his court determines the finality of an order or judgment by
looking to what the order or judgment actually does, not what it is called"
5
(internal quotation marks omitted)). This makes the first order an
interlocutory order that is not appealable.
By contrast, the order on rehearing disposed of all the issues in
the case and left nothing for the district court to consider in the future. See
Barbara Ann Hollier Tr. v. Shack, 131 Nev. 582, 590, 356 P.3d 1085, 1090
(2015) (stating that "a final judgment is one that disposes of all the issues
presented in the case, and leaves nothing for the future consideration of the
court, except for post-judgment issues such as attorney[ ] fees and costs"
(internal quotation marks omitted)). The fact that Jason misnamed his
amended petition as a Ipletition for [r]ehearing and Meconsideration" is of
no consequence because it was, in effect, an amended petition that
incorporated the first petition and also included a physician's certificate.
See Bergenfield, 131 Nev. at 684, 354 P.3d at 1283. Therefore, we conclude
that we have jurisdiction over this appeal because Jason timely filed a
notice of appeal from the district court's final order.4 NRAP 3A(b)(1).
The district court did not abuse its discretion by denying the guardianship
petition
Jason argues that the district court erred when it concluded
that a physician's certificate is required for a guardianship petition. And,
he argues, even if one is required, the district court erred in finding that his
physician's certificate was insufficient. Additionally, Jason argues that the
district court erred when it denied the petition without allowing discovery
or holding an evidentiary hearing.
4NRS 159.375 enumerates certain guardianship orders that are
appealable. However, none of the enumerated provisions include an appeal
from an order denying a petition for guardianship. Because we review such
an order as a final adjudication of the petition, we rely on the more general
grant of authority to appeal final judgments set forth in NRAP 3A(b)(1).
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"Absent a showing of abuse, we will not disturb the district
court's exercise of discretion concerning guardianship determinations.
However, we must be satisfied that the district court's decision was based
upon appropriate reasons." In re Guardianship of L.S. & H.S., 120 Nev.
157, 163, 87 P.3d 521, 525 (2004) (footnote omitted) (internal quotation
marks omitted). Moreover, "[t]his court reviews questions of statutory
construction de novo." Chur v. Eighth Judicial Dist. Court, 136 Nev. 68, 71,
458 P.3d 336, 339 (2020). "If the plain meaning of a statute is clear on its
face, then [this court] will not go beyond the language of the statute to
determine its meaning." Id. (alteration in original) (internal quotation
marks omitted).
The statute at issue here, NRS 159.044, sets forth the
requirements for a guardianship petition. NRS 159.044(2) provides that
itlo the extent the petitioner knows or reasonably may ascertain or obtain,
the petition must include, without limitation" certain information and
documents. (Emphasis added.) Such information and documents include
"[a] certificate signed by a physician" or other qualified person that states
(1) "[t]he need for a guardian;" (2) "[w]hether the proposed protected person
presents a danger to himself or herself or others;" (3) "[w]hether the
attendance of the proposed protected person at a hearing would be
detrimental to the proposed protected person;" (4) "[w]hether the proposed
protected person would comprehend the reason for a hearing or contribute
to the proceeding; ancr (5) "[w]hether the proposed protected person is
capable of living independently with or without assistance." NRS
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159.044(2)(i)(1)(I)-(V).5 NRS 159.044(2)s use of "muse makes it clear that
a certificate is required for a guardianship petition. See Must, A Dictionary
of Modern Legal Usage (Bryan A Garner, ed., 2d ed. 1995) (defining "muse
as "a strong ought . . . or an absolute requiremene). The qualifying
language in the statute relates to the content in the certificate not whether
the certificate must be provided. Thus, the district court did not err in
requiring that Jason include a certificate with his guardianship petition.
It appears, however, that the district court found the
physician's certificate insufficient to satisfy NRS 159.044(2)(i)(1)'s
requirements. Specifically, the district court found that the physician's
certificate was based on hearsay and was produced without conducting an
in-person evaluation of the proposed protected person. We conclude that
this was error. First, experts may, and commonly do, rely on hearsay when
making expert opinions. See NRS 50.285(2) (providing that experts may
rely on "facts or data [that are] not . . . admissible in evidence so long as it
is "of a type reasonably relied upon by experts in forming opinions or
inferences upon the subjece). Second, while the statute specifies the
subjects the certificate must address, NRS 159.044(2)(i)(1)(I)-(V), it is silent
as to the basis required for the statements the certificate contains. Because
the plain language of the statute does not compel an in-person physical
examination of the proposed protected person, it is not appropriate for us to
revise the statute to add one. Felton v. Douglas Cty., 134 Nev. 34, 39 n.2,
410 P.3d 991, 996 n.2 (2018) C[D]eclin[ing] the invitation to adopt a rule
5Under NRS 159.044(2)(i)(1), the certificate can be from "a physician
who is licensed to practice medicine in this State or is employed by the
Department of Veterans Affairs, a letter signed by any governmental
agency in this State which conducts investigations or a certificate signed by
any other person whom the court finds qualified."
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that is absent from statutory language."). While NRS 159.044(2) states
what a guardianship petition "muse contain, it recognizes the exigency that
guardianship petitions can involve and that, in an appropriate case, the
requirements apply only "[t]o the extent the petitioner knows or reasonably
may ascertain or obtain." A certificate based on an in-person examination
may in many cases be preferable or more persuasive than one based on a
record review. But adding an in-person examination requirement to the
requirement of a certificate from a physician or other qualified professional
in every case detracts from the flexibility NRS 159.044(2) contemplates.
Although for reasons different from those given by the district
court, we conclude that it reached the right result. See Saavedra-Sandoval
v. Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010)
(stating that "R]his court will affirm a district court's order if [it] reached
the correct result, even if for the wrong reason"). It is within the district
court's sound discretion to determine whether the contents of the petition
and certificate demonstrate a need for a guardianship. See In re
Guctrdianship of L.S. & H.S., 120 Nev. at 163, 87 P.3d at 525. The
certificate must include the five requirements set forth in NRS
159.044(2)(i)(1)(I)-(V), as stated above. Additionally, in order for a court to
grant a guardianship petition, the petitioner must demonstrate that the
proposed protected person is incapacitated. See NRS 159.054(1) (providing
that "[i]f the court finds that the proposed protected person is not
incapacitated and is not in need of a guardian, the court shall dismiss the
petition"). NRS 159.019 defines "incapacitated" as an individual who "is
unable to receive and evaluate information or make or communicate
decisions to such an extent that the person lacks the ability to meet
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essential requirements for physical health, safety or self-care without
appropriate assistance."
Although the allegations concerning Ida's mental health are
concerning, they are not new. The record reflects that Ida has suffered from
mental illness for some time but remains capable of caring for herself and
handling her day-to-day activities. Notwithstanding the record, Dr. Brown
declined to conclude that Ida was incapable of living independently.
Further, although Dr. Brown expressed concern that Ida's mental illness
may cause her to be a danger to herself or others, he provided no facts and
the record does not support that Ida's safety is in jeopardy. In fact, the
police call logs state that Ida is "ok but delusionar and that she is "able to
care for [her] self and [that her] house was clean." Thus, the physician's
certificate did not sufficiently address the requirements in NRS
159.044(2)(i)(1)(I)-(V), and Jason did not demonstrate that Ida was
incapacitated as that term is defined under NRS 159.019. Accordingly, we
conclude that the district court did not abuse its discretion when it found
that a guardianship over Ida's person was not necessary, especially when
coupled with the fact that Ida's other son Mark has a power of attorney over
her.
We also conclude that, although the district court's reasoning
was erroneous, it did not abuse its discretion in denying the petition without
conducting discovery or holding an evidentiary hearing. While the
guardianship statutes are silent on whether discovery is proper in
guardianship matters, we conclude that NRCP 26 generally permits
discovery but the district court has discretion to control and limit discovery.
See In re the Creation of a Comm. to Study the Creation & Admin. of
Guardianships, ADKT 507 (Order, July 22, 2016) (clarifying that the civil
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procedure rules "apply in guardianship matters, unless there is a specific
statute . . . regarding a procedure or practice that conflict with the NRCr);
see al.so Club Vista Fin. Servs., LLC v. Eighth Judicial Dist. Court, 128 Nev.
224, 228, 276 P.3d 246, 249 (2012) (reviewing discovery matters for an abuse
of discretion). Further, a district court's decision to conduct an evidentiary
hearing in a guardianship matter is within its sound discretion. See Berry
v. State, 131 Nev. 957, 969, 363 P.3d 1148, 1156 (2015) (providing that for
habeas petitions, a district court's decision to grant or deny a petitioner's
request for an evidentiary hearing is discretionary); see also Rooney v.
Rooney, 109 Nev. 540, 542, 853 P.2d 123, 124 (1993) (in the context of child
custody proceedings, "a district court has the discretion to deny a motion to
modify custody without holding a hearing unless the moving party
demonstrates adequate cause for holding a hearing (emphases added)
(internal quotation marks omitted)).
Here, the district court declined to order discovery, reasoning
that it would be "an inappropriate shifting of the burden." This statement
was erroneous. Requiring the parties to submit to discovery does not shift
the burden of proof on the petitioner to show by clear and convincing
evidence that a guardianship should be ordered for the proposed protected
person. NRS 159.055(1). However, we agree that further investigation and
proceedings were not warranted. The record demonstrates, through Ida's
affidavit and the police call logs, that Ida suffers from mental illness but not
that she is unable to care for herself or is a danger to herself. Guardianships
are not to be lightly granted and are not required for every individual who
suffers from a mental illness. A reasonable judge could have concluded that
these facts do not rise to a level that warrants further investigation. See
Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2014) (providing that
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"[a]n abuse of discretion occurs when no reasonable judge could reach a
similar conclusion under the same circumstances"). Given these
circumstances, we cannot conclude that the district court abused its
discretion in denying the petition without ordering discovery or holding an
evidentiary hearing.
For the reasons stated above, we affirm the district court's
order.
We concur:
J.
Parraguirre
Al'istauk J.
Stiglich
J.
J.
Silver
J.
Pickering
Herndon
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