8. Information for Families

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8. Information for Families



Q37:   Are there other ways to assist a vulnerable adult as an alternative to or in addition to guardianship or conservatorship?

A37:       Yes.  There are several different ways you may be able to help your protected person without seeking a guardianship or in addition to a guardianship.  These options include:

  • Representative Payee:  if your protected person is eligible for Social Security or Supplemental Security Income, a person can be appointed by the Social Security Administration to receive and manage those benefits if the protected person is unable to manage the funds independently.
  • Advance Directives:  if a person is still competent, they can inform others of what choices they would like to be made if they later become incapacitated.
    • A Living Will is a written statement describing the type of care a person wishes to receive if they have a terminal illness or are in a persistent vegetative state.  A Living Will can be revoked at any time regardless of mental or physical condition. 
    • A Health Care Power of Attorney is a durable power of attorney that authorizes an agent to make health care decisions on the principal’s behalf.  It can be revoked at any time as long as the principal is competent. 
    • A Medical Directive is a list of medical procedures that a person may indicate they do or do not want and is often a part of a living will or health care power of attorney.
  • Power of Attorney: this document allows one person to act on another’s behalf.  The person creating the document (the principal) grants power to act to the agent (or attorney-in-fact).   Pre-planning is vital when considering a Power of Attorney.  The decision and document must be executed before the principal is in need of assistance in decision making.  A Power of Attorney is not a viable alternative to guardianship once a person has become incapacitated.  A Power of Attorney can be revoked or modified at any time so long as the principal is competent.
    • Non-Durable Power of Attorney automatically terminates if the principal dies or becomes incapacitated. 
    • Durable Power of Attorney lasts beyond incapacity.  In Nebraska, Power of Attorney is durable by default, unless it expressly provides that it will be terminated by incapacity.

Q38:   How do I know if a family member or friend needs a guardian or conservator?

A38:       The decision to seek guardianship or conservatorship is a complicated and hard decision to make for most people.  If you have concerns about a loved one’s ability to communicate and to make decisions, it will be helpful for you to learn about guardianship and its alternatives.  Community resources such as senior centers, aging offices, developmental disabilities resources, physicians, geriatric assessment professionals, and lawyers can all be of assistance.

Some additional considerations when deciding if guardianship is right for your family member or friend include your loved one’s individual strengths, challenges, and best interests for that person. Additionally, you should think about how seeking a guardianship or conservatorship for your loved one might alter your relationship with that person and with the rest of the family. Some people convene a family meeting with or without the assistance of a trusted friend or mediator to talk about the loved one’s situation and what next steps might be helpful.

Q39:   Will I need to seek guardianship for my child who has a developmental disability?

A39:       Parents often think that because they are the parents, they will always have the right to make and communicate decisions for their child who has a developmental disability.  However, in Nebraska, after your child’s 19th birthday, he or she is an adult and is presumed to be legally competent, even if they have a disability that significantly impairs their ability to make or communicate decisions.  At age 19, the law considers the parent to no longer be the child’s legal guardian, and your young adult is legally responsible for making decisions about medical care, finances, and all other areas of life.  For example, many parents are caught off guard when they take their young adult to the doctor and are informed they no longer have a legal right to health information and decision-making.  Parents who are considering guardianship or any of its alternatives need to be pro-active and have plans in place for when their child turns 19. Neb. Rev. Stat. § 43-2101.