When a party to a lawsuit lacks capacity to bring the suit themselves, the attorney is required to bring the suit (or defend the suit) through a representative. Most commonly, that representative is a Special Administrator or a Guardian ad Litem. A Special Administrator stands in the shoes of a deceased individual; a Guardian ad Litem stands in for a child or an incompetent adult.
A Special Administrator may be appointed for any of several reasons. These reasons include where there will be a delay in granting letters testamentary or letters of administration1; where the letters were granted irregularly; where no sufficient bond is filed; where no petition is filed; when an executor or administrator dies, is suspended or removed and immediate appointment of a personal representative is required by the circumstances of the estate; or, in any other proper case. N.R.S. 140.010. The Special Administrator may be appointed ex parte or following notice and a hearing as the court may deem necessary. N.R.S. 140.020. In the instance where a Special Administrator is needed to initiate the lawsuit, an ex parte petition filed simultaneously with the complaint may be used. Where the ex parte petition and the complaint are filed simultaneously, the filing fee for the petition to appoint the Special Administrator may be waived.2 Because of the emergency nature of the appointment of a Special Administrator, the order appointing the Special Administrator is not appealable. N.R.S. 140.020; Nevada Paving, Inc. v. Callahan, 83 Nev. 208, 427 P.2d 383 (1967). A Special Administrator, like any other Administrator may be required to post a bond. Unlike an Administrator or Executor, there are no specific prohibitions as to who may not be an Administrator or Executor. That is, statute bars a person who is under the age of majority, or who is a convicted felon or “who, upon proof, shall be adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of integrity or understanding...” from being an Administrator or Executor. N.R.S. 138.020 and N.R.S. 139.010. A Special Administrator has no such statutory mandate. The court, “shall give preference to the person or persons entitled to letters testamentary or letters of administration...” which implies that the Special Administrator should meet these qualifications. As a practice note, the petition seeking appointment of the Special Administrator should state that the petitioner is not a convicted felon.
The powers of the Special Administrator are limited. The Special Administrator must perform two duties. First, the Special 3 Administrator must collect and preserve the assets of the decedent and the income of the estate for the Executor or Administrator to be appointed. The Special Administrator must also manage any real property owned by the decedent and keep it safe from harm. N.R.S. 140.040. There are also optional powers of the Special Administrator. They may “commence, maintain or defend” lawsuits or other legal proceedings. Id. This is the source of the usefulness of the Special Administrator for the personal injury practitioner. Specific authority to perform these tasks is not required; it is contained in this portion of the statute. Nevada Paving, Inc. v. Callahan, supra. The Special Administrator also has the power to sell perishable property and to borrow money or lease or mortgage real property with court permission. Id. The Special Administrator may also ask the court for power to perform specific functions. Asking the court for permission to perform the tasks that an Administrator or Executor would perform defeats the purpose of a Special Administrator.
Significantly, the Special Administrator does not have the power to distribute assets of the estate, conduct inventories or conduct the myriad other tasks that an Executor or an Administrator may perform in the course of a probate proceeding.3 The end result of these limitations on the Special Administrator’s powers is that should the estate recover any monies from any suit; an Executor or Administrator must be appointed in the same probate proceeding to appropriately account for the assets and distribute them accordingly. In cases where the decedent has substantial assets which would ordinarily be passed by probate, it may be more efficient to appoint an Executor or Administrator to manage the estate; perform partial distributions of the assets, pay creditors and perform the usual functions until the lawsuit is concluded and then distribute those assets and close the estate.
It is also important to note that a Special Administrator is specifically not responsible for claims made by creditors or to pay wrongful death, personal injury or property damage claims where the estate’s sole asset is a liability insurance policy. Id.
The law governing the appointment and powers of Guardians ad Litem is not contained in the chapter governing guardianships. N.R.S. 159.033. A Guardian ad Litem is the proper representative of a minor or incompetent person. N.R.C.P. 17(c ). The Guardian ad Litem must be appointed by the court. Bourne v. Walker, 74 Nev. 230,327 P.2d 344 (1958). The procedure for application is set forth in N.R.S. 12.050. If the minor is under the age of 14, the proposed Guardian ad Litem applies. If the minor plaintiff is age 14 or older, then the minor submits the application to the court. If the minor is age 14 or older and a defendant, the application must be made by the minor with 10 days after service of the summons. Otherwise, a minor defendant may have a relative or friend of the infant or any other party to the action apply to have the Guardian ad Litem appointed. Id. There is no requirement that an insane or incompetent person apply for the appointment of a Guardian ad Litem; that application is made by a relative, friend or the ward or by a relative or friend of any other party to the action. Id.
Because the Guardian ad Litem is not governed by the general guardianship statute, there is no requirement that the Guardian ad Litem perform any of the duties of a guardian such as annual accountings to the court or compilation of an inventory. In any event, where a Guardian ad Litem or Special Administrator has been appointed, care should be taken in the selection of a competent, communicative individual who can handle the stress of litigation. At the end of the litigation, the Guardian ad Litem or Special Administrator should be discharged. This is particularly important for a Special Administrator who must file a report to the court regarding the status of the estate. N.R.S. 140.080. This is an aspect of litigation that is often forgotten in the rush to celebrate the victory or get past the defeat.
The Guardian ad Litem and Special Administrator are useful tools for successful personal injury and wrongful death litigation. They are available to all practitioners and, as shown above, probate experience is not required.
1 Letters Testamentary are used where there is a Last Will and Testament; Letters of Administration are used where the person dies intestate.
2 This is the practice in Clark County.
3 A Special Administrator may be required to perform accountings on an annual basis. N.R.S. 140.080.