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Administrative Office of the Courts and Probation Calendar

04/25/2017 - 9:00am

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Frequently Asked Questions

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GENERAL QUESTIONS
#1. What is the Public Guardianship Act?
#2. What are the duties and responsibilities of the Office of the Public Guardian (OPG)?
#3. Who oversees the Public Guardian?
#4. Who staffs the Office of the Public Guardian Administrative Office and what are their responsibilities?
#5. What is the contact information for the Office of the Public Guardian?
#6. What are Associate Public Guardians (APGs)?
#7. Who are the Associate Public Guardians (APGs) and how do I contact them?
#8. What is the OPG Emergency On-Call policy?
#9. What are the statutory guidelines for the Public Guardian to be appointed guardian and/or conservator?
#10. What court rules guide the appointment of the Public Guardian?
#11. What is the court process for appointing the Office of the Public Guardian? (Flowchart)
#12. Why is the appointment of the Public Guardian process so structured?
#13. Why doesn't the Office of the Public Guardian (OPG) file petitions for guardianships and conservatorships?
#14. How can an individual get a petition filed for an individual who needs a public guardian or public conservator?
#15. Why do I need an attorney to file a petition for a guardian or conservator?

#16. How do I report that I am concerned for a ward's safety, health, or financial welfare when I don't feel it's being addressed by their guardian/conservator?
       #16a. As a ward, how do I report concerns regarding my own safety, health, or financial welfare when I don't feel it's being address by my guardian/conservator.

OFFICE OF THE PUBLIC GUARDIAN ADVISORY COUNCIL
#1. What does the Office of the Public Guardian Advisory Council do?
#2. Who serves on the Advisory Council?

ASSISTANCE TO PRIVATE GUARDIANS AND CONSERVATORS
#1. What assistance does the Office of the Public Guardian (OPG) provide to private guardians and conservators?
#2. What does the Public Guardianship Act require of the Office of the Public Guardian (OPG) regarding training programs for private guardians and conservators?
#3. Is the Office of the Public Guardian (OPG) providing training to private guardians and conservators?
#4. Where do I get a list of the dates, times, and locations of the guardian trainings?
#5. How do I register for guardian training? Is there a fee?

OPG COURT VISITOR REQUIREMENTS
#1. What is the background research for having court visitors?
#2. What is the statutory basis for a court visitor?
#3. Why does a court visitor need to be appointed for all Office of Public Guardian (OPG) cases?
#4. What are the components of the Court Visitor/Guardian ad Litem Report for the court?
#5. Do all Court Visitors/Guardians ad Litem have to complete the same report form? Where is it located?
#6. Can paid Court Visitors/Guardians ad Litem take the OPG Court Visitor Training?
#7. Does the OPG Court Visitor Training qualify for CLE?

VOLUNTARY COURT VISITOR PROGRAM
#8. Why has the Office of the Public Guardian (OPG) implemented a Voluntary Court Visitor Program?
#9. What are the components of the Voluntary Court Visitor Program?
#10. How do I become a Volunteer Court Visitor?

GENERAL QUESTIONS

#1. What is the Public Guardianship Act?
 The Public Guardianship Act is found in Neb. Rev. Stat. §§30-4101 to 30-4118. Legislation was introduced by Senator Colby Coash through LB 920 (2014). The Public Guardianship Act provides:

  • The creation of the Office of the Public Guardian (OPG);
  • The OPG is within the judicial branch of government and is directly responsible to the State Court Administrator;
  • The State Court Administrator shall appoint the Public Guardian;
  • Office will be comprised of twelve Associate Public Guardians with an average of 40 protected persons/wards per Associate;
  • The State Court Administrator shall appoint an Advisory Council for the OPG;
  • The OPG will promote public awareness of guardians and conservators;

The OPG will submit a yearly report to the Legislature on, or before, every January 1.

#2. What are the duties and responsibilities of the Office of the Public Guardian (OPG)?
Under the Public Guardianship Act, Neb. Rev. Stat. §§30-4101 through 30-4118, the duties of the OPG include:

  • Shall safeguard the rights of individuals by exploring all options available to support [them] in the least restrictive manner possible and seek full guardianship only as a last resort. Neb. Rev. Stat. §30-4105(7)(2014)
  • Shall model the highest standard of practice for guardians/conservators to improve performance of all guardians/conservators in the state. Neb. Rev. Stat. §30-4105(8)(2014)
  • Shall act as a resource to private guardians/conservators for education, information, and support to enhance guardian/conservator success. Neb. Rev. Stat. §30-4105(6)(2014)
  • Shall develop and maintain training programs statewide to offer training curricula to private guardians/conservators. Neb. Rev. Stat. §30-4109(6)(2014)
  • Shall recruit and support members of the public and family to serve as guardians or conservators, and make reasonable efforts to locate success guardians/conservators. Neb. Rev. Stat. §4105(5)(2014)
  • Shall develop a uniform system of reporting and collecting statistical data regarding guardianships/conservatorships. Neb. Rev. Stat. §30-4109(1)(2014)

#3. Who oversees the Public Guardian?
The OPG is directly responsible to the State Court Administrator. Neb. Rev. Stat. §30-4104(2014)

#4. Who staffs the Office of the Public Guardian Administrative Office and what are their responsibilities?
Director/Public Guardian - responsible for the Office of the Public Guardian
Deputy Directory/Deputy Public Guardian - responsible for court processes and oversight, and Associate Public Guardians (APG) services as public guardians and public conservators
Business Manager - responsible for wards' and protected persons' finances
Education and Outreach Coordinator - responsible for Volunteer Court Visitor program, information, and education of private guardians and private conservators
Administrative Assistant for Administrative Staff - provides information for Volunteer Court Visitor program, guardian and conservator education and outreach, and general Office of the Public Guardian questions
Intake Administrative Assistant - responsible for intake, information, and assistance for new and ongoing cases, court processes, and support for APG direct service to wards and protected persons

#5. What is the contact information for the Office of the Public Guardian?
Main Office
PO Box 98910
Lincoln, NE 68510
(402) 471.2862
nsc.publicguardian@nebraska.gov

#6. What are Associate Public Guardians (APGs)?
Each of the twelve Associate Public Guardians (APGs) serve a designated geographic service area in the state. There are currently two office locations: the main office is in Lincoln at the State Capitol with two APGs working out of the administration office, and the second office is in Omaha and houses the five APGs that serve the eastern area of the state. The APGs covering the remaining service areas work from their home offices near Norfolk, Hastings, Kearney, North Platte, and Scottsbluff.

The Associate Public Guardians (APGs) have vast experiences in a wide variety of social services and legal professions, strengthening the knowledge and skills of the OPG team. The APGs' professional backgrounds include: service coordination and direct service for individuals with developmental disabilities, counseling for individuals with mental health issues, administration of a specialized care facility for individuals with Alzheimer's, case management provision within Adult Protective Services, and professional educators. The Director and Deputy Director, as well as some of the APGs, have law degrees.

#7. Who are the Associate Public Guardians (APGs) and how do I contact them?
Click here for photos and biographies of the current APGs.
Click here for a map of the service areas that coordinates with the following list of APG contact information.

Contacting an APG
*Monday - Thursday evenings, your local APG can be contacted outside of business hours in emergencies. Non-emergency calls will be returned the next business day.
*Weekend and Holiday Emergencies can be directed to the on-call APG at 402.302.0445.

Contact Information for Associate Public Guardians by service area (west to east):

Stacy Rotherham - Panhandle Area, Scottsbluff stacy.rotherham@nebraska.gov(308) 672-7433
Kylie Joyce - West Central Area, North Platte kylie.joyce@nebraska.gov(308) 325-0465
Michelle Moore - MidCentral Area, Kearneymichelle.moore@nebraska.gov(308) 627-9768
Annette Scarlett - MidCentral Area, Grand Island/Hastingsannette.scarlett@nebraska.gov(308) 218-7388
Vacant - Northeast Area, Norfolk  
Danielle "Ellie" Schunk - EastCentral Area, Lincolndanielle.schunk@nebraska.gov(402) 889-3272
Jena Davenport - EastCentral Area, Lincolnjena.davenport@nebraska.gov(531) 333-6236
Chelsea Egenberger - EastCentral Area, Lincolnchelsea.egenberger@nebraska.gov(531) 289-0141
Alicia "Ali" Husted - EastCentral Area, Lincolnalicia.husted@nebraska.gov(402) 440-7740
Sophia Alvarez - East Area, Omahasophia.alvarez@nebraska.gov(402) 763-7898
Jordan Harvey - East Area, Omahajordan.harvey@nebraska.gov(402) 536-0315
Brad Brake - East Area, Omaha/South Sioux Citybrad.brake@nebraska.gov(402) 580-5629
Erin Wiesen - East Area, Omaha/David Cityerin.wiesen@nebraska.gov(402) 350-0176
Peng Li - East Area, Omahapeng.li@nebraska.gov(402) 432-2008
JoAnn Maurer - East Area, Omahajoann.maurer@nebraska.gov(402) 670-1227
Janelle CantuSoutheast Area, Papillion/Falls Cityjanelle.cantu@nebraska.gov(402) 681-1929

#8. What is the OPG Emergency On-Call policy?
Associate Public Guardians (APGs) are available by the contact information listed above Monday at 8:00 a.m. until Friday at 5:00 p.m. If an emergency arises after office hours (5:00 p.m.), the APG serving the appropriate service area may be contacted. If it is not an emergency, please wait until the following business day.

When calling on holidays or Friday after 5:00 p.m. to Monday at 8:00 a.m., please call the on-call APG at 402.302.0445. The APGs will not answer direct phone calls during the aforementioned time unless they are the designated on-call associate.

#9. What are the statutory guidelines for the Public Guardian to be appointed guardian and/or conservator?
"A court may order appointment of the Public Guardian as a guardian or conservator only after notice to the Public Guardian and a determination that the appointment or order is necessary and will not result in the Public Guardian having more appointments than permitted (average of 40 per associate). The determination of necessity may require the court to ascertain whether there is any other alternative to public guardianship or public conservatorship." (§30-4112)(§30-4115)

"The Public Guardian may accept an appointment as a guardian or conservator for an individual not to exceed an average of forty individuals per associate public guardian hired by the office. When the average has been reached, the Public Guardian shall not accept further appointments. The Public Guardian, upon reaching the maximum number of appointments, shall notify the State Court Administrator that the maximum number of appointments has been reached." (§30-4115)

"Least restrictive" protection protocol (§30-4102)(1), (§30-4105)(7), (§30-4112)

#10. What court rules guide the appointment of the Public Guardian?
§6-1433.01. Public Guardian nomination procedures.

§6-1433.02. Public Guardian.

§6-1433.01 Public Guardian nomination procedures

  (A) The individual filing the petition/application to appoint the Public Guardian shall provide notice of the nomination to the Office of Public Guardian. Notice shall be given on a separate form approved by the State Court Administrator’s Office.

   (B) Upon receiving the notice of nomination, the Office of Public Guardian shall file with the court, within 14 days: (1) an acknowledgment of nomination and (2) verification of caseload capacity subject to statutory requirements of the Public Guardianship Act.

   (C) If the Office of Public Guardian is unable to accept the nomination due to its caseload capacity status, good cause shall be presumed to exist to deny its appointment. The appearance of the Office of Public Guardian shall no longer be required.

   (D) The court shall appoint a visitor consistent with Neb. Rev. Stat. § 30-2619.01, or a guardian ad litem pursuant to Neb. Rev. Stat. § 30-2222(4), within 10 judicial days of the filing of acknowledgment and caseload capacity verification by the Office of Public Guardian if the verification shows the Office of Public Guardian has capacity to take the case. If the acknowledgment and caseload capacity verification shows the Office of Public Guardian does not have capacity to take the case, the court may request the case be placed on the Office of Public Guardian waiting list. If the court requests the case be placed on the Office of Public Guardian waiting list, the court shall appoint a visitor consistent with Neb. Rev. Stat. § 30-2619.01, or a guardian ad litem pursuant to Neb. Rev. Stat. § 30-2222(4), within 10 judicial days of the request to place the case on the Office of Public Guardian waiting list.

   (E) The visitor or guardian ad litem report shall comply with Neb. Rev. Stat. § 30-2619.03, and to assist the Office of Public Guardian fulfill its duties mandated by the Public Guardianship Act, the report will include a standard form approved by the State Court Administrator’s Office to include information required by Neb. Rev. Stat. § 30-2619.01.

   (F) The Office of Public Guardian shall have 10 judicial days to file responses to the visitor or guardian ad litem report.

   (G) Once the Office of Public Guardian receives the visitor report, it shall file another verification of caseload capacity within five judicial days. If the visitor or guardian ad litem report shows that there is no one other than the Office of Public Guardian to serve as guardian and/or conservator and if the Office of Public Guardian has capacity to take the case, then the Office of Public Guardian shall not accept any additional appointments which would in the interim cause its capacity to be exceeded before final determination is made by the court as to its appointment.

   (H) Unless otherwise ordered by the court, hearing on the petition for appointment of the Office of Public Guardian shall not take place less than 60 days but no more than 90 days from the filing of nomination.

   (I) In addition to the statutory requirements, in the order to appoint the Office of Public Guardian as a guardian or conservator, the order of appointment shall also provide:

   (1) Proper notice has been given to the Office of Public Guardian;

   (2) The petitioner has acted in good faith and due diligence to identify a guardian or conservator who would serve in the best interest of the alleged incapacitated person;

   (3) The appointment of the Office of Public Guardian is necessary and does not exceed the caseload limitations as set forth by statute;

   (4) That the visitor or guardian ad litem report has provided supporting evidence that no person is available for appointment as guardian or conservator, all options available to support the individual in the least restrictive manner possible has been explored, and guardianship is a last resort; and

   (5) There is no other alternative than to appoint the Office of Public Guardian.

   (J) When the Office of Public Guardian has no available caseload capacity to assume the duties of guardian and conservator at the time of the appointment, the court may order that the case be placed on the waiting list, as provided by the Office of Public Guardian, if the court finds:

   (1) Proper notice was given to the Office of Public Guardian;

   (2) The petitioner has acted in good faith and due diligence to identify a guardian or conservator who would serve in the best interest of the alleged incapacitated person;

   (3) The appointment of the Office of Public Guardian would be necessary, but that no current caseload capacity exists to serve the individual by the Office of Public Guardian, as set forth by statute; and

   (4) That the visitor or guardian ad litem report as outlined in these procedures has been completed and supports the appointment of the Office of Public Guardian, but for the lack of capacity by the Office of Public Guardian, all options available to support the individual in the least restrictive manner possible has been explored, and the guardianship is a last resort.

§6-1433.02. Public Guardian.

  (A) If the Office of Public Guardian is nominated as the guardian and/or conservator, the Office of Public Guardian shall be considered an interested person.

  (B) No bond shall be required of the Office of Public Guardian.

  (C) If the Office of Public Guardian is appointed guardian and/or conservator, payments to the Office of Public Guardian will be allowed as per the established sliding fee scale as approved by the Court.

  (D) If the Office of Public Guardian is appointed guardian and/or conservator, the Office of Public Guardian shall be required to file a budget with the initial inventory. This shall be for informational purposes only. Neb. Ct. R. § 6-1442.01 shall not apply to the Office of Public Guardian. The Office of Public Guardian shall be required to file an annual accounting even if a budget has been provided.

  (E) The Office of Public Guardian is prohibited from making ATM withdrawals or receiving cash back on debit transactions, and this shall be reflected on the Letters.

  (F) If the Office of Public Guardian is nominated as the initial or successor guardian or conservator, the court shall appoint a visitor and/or guardian ad litem, consistent with Neb. Rev. Stat. § 30-2619.01, or a guardian ad litem pursuant to Neb. Rev. Stat. § 30-2222(4), to ensure the necessity of the guardianship and/or conservatorship, whether there is an appropriate private guardian and/or private conservator to serve in the case and to determine the appropriate limitations within the guardianship and/or conservatorship.

   (1) If the acknowledgment of nomination and caseload capacity verification filed by the Office of Public Guardian indicates the Office of Public Guardian has caseload capacity to take the case, the appointment of a visitor and/or guardian ad litem will occur within 10 judicial days of the court receiving the acknowledgment.

   (2) If the acknowledgment and caseload capacity verification filed by the Office of Public Guardian indicates the Office of Public Guardian does not have caseload capacity to take the case, the court may request the case be placed on the Public Guardian waiting list. If the court requests the case be placed on the Office of Public Guardian’s waiting list, the court shall appoint a visitor and/or guardian ad litem within 10 judicial days of the court’s waiting list request.

  (G) The court may appoint the Office of Public Guardian on a temporary basis if an emergency exists until an evidentiary hearing can be held. The court shall appoint a visitor and/or guardian ad litem as provided in subsection (F) above within 10 days of signing the temporary Order.

  (H) An appointed visitor and/or guardian ad litem is to conduct an evaluation of the allegations of incapacity and whether there is an appropriate private guardian and/or private conservator to serve in the case. The visitor or guardian ad litem shall provide a written report to the court, on a form approved by the State Court Administrator’s Office, and allow for the filing of responses to the report in accordance with Neb. Rev. Stat. §§ 30-2619 through 30-2619.04.

  (I) The court should consider utilizing a multi-disciplinary screening to determine diminished capacity. The multi-disciplinary screening shall include, but is not limited to, the individual’s: (1) medical condition; (2) cognitive functioning; (3) daily living functional abilities; (4) consistency of functioning with his/her values, preferences, and lifetime patterns; (5) risk of harm in the context of his/her social and environmental supports; and (6) means to enhance capacity through accommodations and effective communication techniques. This screening may be done by a trained visitor or trained guardian ad litem that is appointed by the court.

  (J) The Office of Public Guardian may file a motion to make more definite and certain a statement of functional limitation (§30-2619) regarding the determination of necessity to ascertain whether any alternative to public guardianship or conservatorship exists.

#11. What is the court process for appointing the Office of the Public Guardian? (Flowchart)
Click here for a flowchart defining the process to nominate the Office of the Public Guardian. Click here if you're interested to learn about emergency appointments where the Office of the Public Guardian is appointed.

#12. Why is the appointment of the Public Guardian process so structured?
The Public Guardian is required to comply with the Public Guardianship Act. The Act's intent is to provide public guardians and public conservators as a last resort, only when necessary, and in the last restrictive manner. In addition, there is a statutory cap on the number of individuals served - 480 individuals statewide. Therefore the goals of the court process, as set out in the rules, are to provide equitable access to incapacitated individuals, ensure compliance with the Public Guardianship Act, and manage the appropriate utilization of resources.

Public Guardian Act: Neb. Rev. Stat. §30-4102. Legislative findings. 

The Legislature finds that the present system of obtaining a guardian or conservator for an individual, which often depends on volunteers, is inadequate when there is no willing and qualified family member or other person available or willing to serve as guardian or conservator for such individual. The Legislature finds that there is a need to provide guardians and conservators when there is no one suitable or available with priority to serve the needs of such individual. The Legislature intends that establishment of the Office of Public Guardian will provide services for individuals when no private guardian or private conservator is available. The Legislature also finds that alternatives to full guardianship and less intrusive means of intervention should always be explored, including, but not limited to, limited guardianship, temporary guardianship, conservatorship, or the appointment of a payee. It is the intent of the Legislature to provide a public guardian or public conservator only to those individuals whose needs cannot be met through less intrusive means of intervention.

Under the Public Guardianship Act, Neb. Rev. Stat. §§30-4101 through 30-4118, the duties of the Office of Public Guardian include:

  • Safeguard the rights of individuals by exploring all options available to support [them] in the least restrictive manner possible and seek full guardianship only as a last resort;
  • Model the highest standard of practice for guardians/conservators to improve performance of all guardians/conservators in the state;
  • Act as a resource to guardians/conservators for education, information, and support to enhance guardian/conservator success;
  • Develop and maintain training programs statewide to offer training curricula for private guardians/conservators;
  • Recruit and support members of the public and family to serve as guardians or conservators, and make reasonable effort to locate successor guardians/conservators;
  • Develop a uniform system of reporting and collecting statistical data regarding guardianships/conservatorships.


#13. Why doesn't the Office of the Public Guardian (OPG) file petitions for guardianships and conservatorships?
In accordance with research and best practice, the Nebraska Public Guardianship Act does not allow the Office of the Public Guardian to file petitions for guardianships and conservatorships. To do so would be a conflict of interest and an overreach by the state: using state powers, through the OPG, to request an individual be identified as incapacitated; then have the state, through OPG, request a guardian/conservator to be appointed; then having an appointment made by an employee of the Supreme Court (judge) at the request, and to, another member of the Supreme Court (OPG). All of these actions that may result in taking away a range of civil rights, property rights, and decision-making capacity would be by a state entity, the OPG. Accordingly, all of the processes- request for finding of incapacity, request for guardianship, appointment as guardian, and decision-making control as guardian of a vulnerable adult- would be a monopoly of one state entity. This could be a conflict of interest and would be a potential lack of protection of due process.

Conflict of interest issues are outlined by Mary Jo Quinn in her book Guardianships of Adults, Achieving Justice, Autonomy and Safety, discussing a 1981 national survey on public guardianship programs. First, if the public guardian is able to charge fees to individuals, a potential conflict arises when there may be a financial benefit to the agency to file petitions, or file certain petitions because of the ability to get financial gain; an individual with financial means may be chosen over another who may have equal, or more need, but has no financial resources that would be to the public guardian's benefit. Second, if the public guardian could file petitions, the public guardian could "cherry pick" services providing petitions only to as many guardianships as it desires, or only for individuals who are the easiest, least costly, and least time-consuming to serve.

#14. How can an individual get a petition filed for an individual who needs a public guardian or public conservator?
While it is not appropriate for the Office of Public Guardian to file petitions, there is still a need for petitions to be filed in order for the Public Guardian to be considered. There are attorneys who specialize in guardianships and conservatorships that can be contacted through the Nebraska State Bar Association. There are also attorneys who provide pro bono services through the Nebraska State Bar Volunteer Lawyers Project. Additionally, both civil clinic programs at UNL College of Law and Creighton College of Law provide limited guardian and conservator services. The Medical Legal Partnership through Nebraska Legal Aid works in conjunction with some Omaha area hospitals.

#15. Why do I need an attorney to file a petition for a guardian or conservator?
The paradox of guardianships, and therefore an area of potential overreach for anyone serving as a guardian/conservator, is described by author Mary Jo Quinn in her book Guardianships of Adults, Achieving Justice, Autonomy and Safety. Ms. Quinn writes, "A key to understanding guardianship and its history is to recognize that it is based on an inherent tension. Guardianship has always had two faces - it is protective yet oppressive, an instrument of beneficence that can, at the same time, bring a dire loss of rights. Guardianship can be an accommodation, an enabler helping to provide for basic needs and offer protections. Without guardianship, vulnerable individuals may languish unnecessarily in situations, suffer from lack of appropriate health care, or be subject to abuse and exploitation. Yet the very same institution of guardianship removes fundamental rights, restricting self-determination, freedom to choose, freedom to risk. It has been said to 'unperson' an individual, reducing her to the status of a child. Thus, guardianships can 'empower' and it can 'unpower.'"

This paradox of guardianship- that it can provide safety or can abuse a vulnerable individual's civil rights- increases the need to assure that a potentially incapacitated person is not exploited by others through the judicial process. Accordingly, an attorney's legal education and requirement to adhere to a code of professional conduct, make it preferable to have a lawyer file a guardianship or conservator petition. The Model Rules of Professional Conduct seek to protect the integrity of the judicial process, this includes requiring that an attorney: determine the merits of a case, not facilitate in fraud, provide candor toward the tribunal, act with fairness towards opposing party, require truthfulness in statements to others, and maintain the ethics of the legal profession.

#16. 
How do I report that I am concerned for a ward's safety, health, or financial welfare when I don't feel it's being addressed by their guardian/conservator?
The Nebraska Supreme Court Forms site has a court form titled "Application & Affidavit For Intervention on Behalf of the Welfare of the Ward." This form can be filled in by any person interested in the ward's wellbeing, and then needs to be submitted to the court where the guardianship is overseen.

        
#16a. As a ward, how do I report concerns regarding my own safety, health, or financial welfare when I don't feel it's being address by my guardian/conservator.
        If you are a ward and you are concerned that your safety, health, or financial welfare is not being appropriately addressed by your guardian/conservator, you do have the right to voice your
        concerns to the court. The only way to have these issues brought to the court's attention is by written notice (a letter with your concerns) or by an attorney if you have one.

OFFICE OF THE PUBLIC GUARDIAN ADVISORY COUNCIL

#1. What does the Office of the Public Guardian Advisory Council do?
The purpose of the Advisory Council is to "advise the Public Guardian on the administration of public guardianship and public conservatorship." Neb. Rev. Stat. §30-4108(1)  The Advisory Council shall act as consultant with the Supreme Court, as the Supreme Court shall promulgate rules to carry out the Public Guardianship Act. Neb. Rev. Stat. §30-4110. The Advisory Council shall meet at least four times a year. Neb. Rev. Stat. §30-4108(2)

#2. Who serves on the Advisory Council?
Composition: "Comprised of individuals from a variety of disciplines who are knowledgeable in guardianship and conservatorship, be representative of the geographical and cultural diversity of the state, and reflect gender fairness." Neb. Rev. Stat. §30-4106

Term: 1) Initial appointment shall be staggered terms of one, two, or three years, as determined by the State Court Administrator; 2) Subsequent terms shall be for three years; 3) Appointments of initial members made within ninety days after January 1, 2015; 4) Vacancy shall be filled in some manner as original, for duration of term vacated. Neb. Rev. Stat. §30-4107

Membership: A list of the current members of the OPG Advisory Council.

ASSISTANCE TO PRIVATE GUARDIANS AND CONSERVATORS

#1. What assistance does the Office of the Public Guardian (OPG) provide to private guardians and conservators?
The Public Guardianship Act states that the OPG shall:

Neb. Rev. Stat. §30-4105... (4) Shall promote or provide public education to increase the awareness of the duties of guardians and conservators and encourage more people to serve as private guardians or private conservators; (5) Shall recruit members of the general public or family members to serve as guardians or conservators and provide adequate training and support to enhance their success; (6) Shall act as a resource to persons already serving as guardians or conservators for education, information, and support; (7) Shall safeguard the rights of individuals by exploring all options available to support individuals in the least restrictive manner possible and seek full guardianship only as a last resort; and (8) Shall model the highest standard of practice for guardians and conservators to improve the performance of all guardians and conservators in the state.

Neb. Rev. Stat. §30-4109... (5) Maintain, in conjunction with private and other public resources, a curricula for training sessions to be made available for successor guardians and successor conservators and private guardians and private conservators; (6) Maintain training programs available statewide to offer the training curricula for interested parties to include: (a) Helping a guardian understand his or her ward's disabilities and a conservator understand his or her fiduciary duties with respect to his or her protected person; (b) Helping a guardian encourage increased independence on the part of his or her ward, as appropriate; (c) Helping a guardian with the preparation and revision of guardianship plans and reports and a conservator with the preparation and revision of accountings; and (d) Advising a guardian or conservator on ways to secure rights, benefits, and services to which his or her ward or protected person is entitled; (7) Promote public awareness of guardianship and conservatorship, the responsibilities attached, and the need for more private guardians and private conservators.

#2. What does the Public Guardianship Act require of the Office of the Public Guardian (OPG) regarding training programs for private guardians and conservators?
The Public Guardianship Act requires the OPG to maintain training programs for private guardians, successor guardians, and interested parties to ensure successful guardians/conservators, Neb. Rev. Stat. §30-4105(5). The curriculum is to include: (a) Helping a guardian understand his or her ward's disabilities and a conservator understand his or her fiduciary duties with respect to his or her protected person; (b) Helping a guardian encourage increased independence on the part of his or her ward, as appropriate; (c) Helping a guardian with the preparation and revision of guardianship plans and reports and a conservator with the preparation and revision of accountings; and (d) Advising a guardian or conservator on ways to secure rights, benefits, and services to which his or her ward or protected person is entitled, Neb. Rev. Stat. §30-4109(6). 

#3. Is the Office of the Public Guardian (OPG) providing training to private guardians and conservators?
As of January 1, 2016, the OPG began conducting statewide guardian trainings previously offered by the University of Nebraska - Lincoln Extension Office and Volunteers Assisting Seniors. An Associate Public Guardian (APG) from the Office of the Public Guardian, along with a volunteer attorney, conducts the trainings in their respective service areas. The APGs are well educated and act as guardian for individuals on behalf of the OPG. The volunteer attorneys are available at the trainings to assist with legal questions, though if you are in need of specific legal advice, we ask that you speak with your personal attorney.

All guardian trainings are done in a classroom setting, and participants must be in attendance at the training site.

The OPG has arranged for a Spanish interpreter to be available for certain training dates. These dates are denoted on the training list with "**" next to the date of the training. If an interpreter is needed, it is critical that this is identified in the "Accommodations" box while registering, or the information must be provided if the registration is done over the phone. The interpreter will not attend the training if no one has indicated the necessity.

If interpretation for a language other than Spanish is needed, the OPG must be informed at least 30 days from the date of the training. It is not guaranteed that an interpreter will be available during the identified training, but the OPG will accommodate this to the best of their ability.

#4. Where do I get a list of the dates, times, and locations of the guardian trainings?
The complete list of guardian trainings throughout the state is here.

The OPG has arranged for a Spanish interpreter to be available for certain training dates. These dates are denoted on the training list with "**" next to the date of the training. If an interpreter is needed, it is critical that this is identified in the "Accommodations" box while registering, or the information must be provided if the registration is done over the phone. The interpreter will not attend the training if no one has indicated the necessity.

#5. How do I register for guardian training? Is there a fee?
Registration can be done online on the list of trainings, click on the "register" button in the far right column to complete the registration by credit card or electronic check. Registrations can also be done over the phone with a credit card, an electronic check, or by arranging for mailed payment in the form of check or money order. If you would prefer to register over the phone, please call the main OPG phone number at 402.471.2862.

The fee for the training is $35.

OPG COURT VISITOR REQUIREMENTS

#1. What is the background research for having Court Visitors?
In researching best practice for serving Nebraska's potentially incapacitated persons in a manner that balances the due process rights of individuals and the safety needs of incapacitated persons, and in accordance with the Legislative intent and requirements of the Public Guardian Act, the OPG researched multiple models of public guardianship. Mary Jo Quinn's, Guardianships of Adults, Achieving Justice, Autonomy and Safety, states "Educated, compassionate, and savvy court investigators appear to be the key to ensuring that all due process protections have been observed both in the spirit and the letter of the law. They are the linchpins to providing judges with the best possible overall information about the person with diminished capacity and his wishes." Additionally, the National Probate Code Standard 3.3.4 Court Visitor states that probate courts should require a court appointee to visit with the respondent upon the filing of a petition to initiate a guardianship/conservatorship proceeding to (1) explain the rights of the respondent, (2) investigate the facts of the petition, and (3) determine whether there may be a need for appointment of counsel.

National Probate Code Standard 3.3.4 Court Visitor states:

The visitor shall file a written report with the court promptly after the visit. (Richard Van Duizend, National Probate Court Standards §3.3.4, 49-50 National Center for State Courts, 2013).

Commentary included to address standard 3.3.4 explains that the term "visitor" in this context also applies to other designations, such as guardian ad litem.

Commentary to 3.3.4 further states that, "Court visitors serve as the eyes and ears of probate courts, making an independent assessment of the need for guardianship/conservatorship." Without anyone bringing forth this specialized knowledge, the court is not able to consider any of these factors unless brought to light in some other way. Using a mechanism, such as visitors and/or guardians ad litem ensures this information is presented and analyzed to produce the best outcome possible.

#2. What is the statutory basis for a Court Visitor?
Current Nebraska statutes provide for an appointment of a Court Visitor to conduct an evaluation of the allegations of incapacity and obtain evidence relating to the allegedly incapacitated person's ability to make, communicate, or carry out responsible decisions. The Court Visitor is to interview the allegedly incapacitated person, and other persons and agencies that may provide relevant information and visit the present place of abode of the person alleged to be incapacitated. Neb. Rev. Stat. §30-2619.01 - 30.2619.03 (2014). A visitor shall be trained in law, nursing, social work, mental health, gerontology, or developmental disabilities. The court is to select the visitor who has the expertise to most appropriately evaluate the needs of the person who is allegedly incapacitated. The court shall maintain a current list of persons trained in or having demonstrated expertise in the areas of mental health, intellectual disabilities, drug abuse, alcoholism, gerontology, nursing, and social work, for the purpose of appointing a suitable visitor. Neb. Rev. Stat. §30-2624 (2014).

Neb. Rev. Stat. §30-2619.01. Visitor appointment; conduct evaluation; duties.

Following the filing of a petition, the court may appoint a visitor and direct such visitor to conduct an evaluation of the allegations of incapacity as provided under this section. To conduct the evaluation of the allegations of incapacity, the visitor shall interview the allegedly incapacitated person, the person seeking appointment as guardian, the agencies providing services to the allegedly incapacitated person, and other persons and agencies that may provide relevant information. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and, if any change of residence is anticipated, the place it is proposed that he or she will be detained or reside if the requested appointment is made, and submit his or her report in writing to the court.

As part of the evaluation of allegations of incapacity, a visitor, if appointed, shall obtain evidence relating to the allegedly incapacitated person's ability to make, communicate, or carry out responsible decisions concerning his or her person with regard to:

(1) Selecting his or her place of abode within or without this state;

(2) Arranging for his or her medical care;

(3) Protecting his or her personal effects;

(4) Giving necessary consents, approvals, or releases;

(5) Arranging for training, education, or other habilitating services appropriate to him or her;

(6) Applying for private or governmental benefits to which he or she may be entitled;

(7) Instituting proceedings to compel any person liable for the support of the proposed ward to support him or her if no conservator has been appointed for the proposed ward;

(8) Entering into contractual agreements if no conservator has been appointed for the proposed ward;

(9) Receiving money and tangible property deliverable to him or her and applying such money and property to his or her expenses for room and board, medical care, personal effects, training, education, and habilitative services; and

(10) Any other area of inquiry which the court may direct.

Neb. Rev. Stat. §30-2619.03. Visitor's evaluation report; contents.

The visitor shall file an evaluation report based upon the evaluation of the allegations of incapacity with the court within sixty days of the filing of the guardianship petition. Copies of the evaluation report shall be made available to the guardian ad litem, the proposed ward, and the petitioner. The evaluation report shall contain:

(1) A record of the visitor's interviews;

(2) Evidence obtained in each of the categories listed in section 30-2619.01;

(3) Recommendations as to the need of the proposed ward for a guardian in each of the areas listed in section 30-2619.01;

(4) The visitor's opinion as to the appropriateness of the person seeking appointment as guardian;

(5) Recommendations as to other appropriate candidates; and

(6) The visitor's opinion as to the needed duration of the guardianship.

Neb. Rev. Stat. §30-2624. Visitor; qualifications.

A visitor shall be trained in law, nursing, social work, mental health, gerontology, or developmental disabilities and shall be an officer, employee, or special appointee of the court with no personal interest in the proceedings.

Any qualified person may be appointed visitor of a proposed ward, except that it shall be unlawful for any owner, part owner, manager, administrator, or employee, or any spouse of an owner, part owner, manager, administrator, or employee of a nursing home, room and board home, convalescent home, group care home, or institution providing residential care to any person with a physical disability, with an intellectual disability, with an infirmity, or who is aged to be appointed visitor of any such person residing, being under care, receiving treatment, or being housed in any such home or institution within the State of Nebraska.

The court shall select the visitor who has the expertise to most appropriately evaluate the needs of the person who is allegedly incapacitated.

The court shall maintain a current list of persons trained in or having demonstrated expertise in the areas of mental health, intellectual disability, drug abuse, alcoholism, gerontology, nursing, and social work, for the purpose of appointing a suitable visitor.

#3. Why does a Court Visitor need to be appointed for all Office of Public Guardian (OPG) cases?
In implementing the Public Guardianship Act, Nebraska Court rules have been adopted that will require the utilization of a court visitor/guardian ad litem to complete an independent court visitor evaluation in every case that the Public Guardian is nominated to serve as a guardian/conservator. The independent court visitor evaluation and information provided to the court will assure, in accordance with the Public Guardianship Act, the OPG is appointed only: as a last resort; in the least restrictive manner for individuals whose needs cannot be met through less intrusive means of intervention; and only when others are unwilling, unable, or unavailable to serve. Additionally, the use of visitor/guardian ad litem screening will provide a process to determine Public Guardian capacity; and an equitable, fair allocation for public guardian appointments and acceptance to waiting lists. Finally, having a standardized visitor report form for all OPG cases will provide qualitative, accurate data on OPG resource utilization. This will be especially important for future policy determinations if the OPG reaches capacity and has a waiting list of individuals requiring services.

"The Public Guardian shall maintain periodic contact with all individuals, agencies, public or private, providing care or related services to the ward or protected person." (§30-4116)(c)

"Assumes all duties and responsibilities of guardian/conservator for appointed individual" (§30-4104)

"Provide equal access and protection for all individuals in need of guardianship or conservatorship services" (§30-4105)(3)

Process of Appointment of Office of Public Guardian:

"A court may order appointment of the Public Guardian as a guardian or conservator only after notice to the Public Guardian and a determination that the appointment or order is necessary and will not result in the Public Guardian having more appointments than permitted [average 40 per associate]. The determination of necessity may require the court to ascertain whether there is any other alternative to public guardianship or public conservatorship." (§30-4112)(§30-4115)

"The Public Guardian may accept an appointment as a guardian or conservator for an individual not to exceed an average of forty individuals per associate public guardian hired by the office. When the average has been reached, the Public Guardian shall not accept further appointments. The Public Guardian, upon reaching the maximum number of appointments, shall notify the State Court Administrator that the maximum number of appointments has been reached." (§30-4115)

"Least restrictive" protection protocol (§30-4102)(1), (§30-4105)(7), (§30-4112)

#4. What are the components of the Court Visitor/Guardian ad Litem Report for the court?
The Court Visitor/Guardian ad Litem Report (CC 16:2.93) is developed to be in compliance with the requirements of visitor evaluations and duties in Neb. Rev. Stat. §§30-2619.01 and 30-2619.03. In addition, the report provides information required by the Public Guardianship Act, Neb. Ct. R. §6-1433.01 (Public Guardian nomination procedures) and §6-1433.02 (Public Guardian) that "the visitor or guardian ad litem report has provided supporting evidence that no person is available for appointment as guardian or conservator, all options available to support the individual in the least restrictive manner possible has been explored, and guardianship is a last resort; and there is no other alternative than to appoint the Office of Public Guardian." Finally, the Court Visitor Report form includes the option for further evaluation as outlined in Neb. Ct. R. §6-1433.02... "(I) The court should consider utilizing a multi-disciplinary screening to determine diminished capacity. The multi-disciplinary screening shall include, but is not limited to, the individual's: (1) medical condition; (2) cognitive functioning; (3) daily living functional abilities, (4) consistency of functioning with his/her values, preferences, and lifetime patterns; (5) risk of harm in the context of his/her social and environmental supports; and (6) means to enhance capacity through accommodations and effective communication techniques. This screening may be done by a trained visitor or trained guardian ad litem that is appointed by the court."

The Court Visitor or Guardian ad Litem, in order to complete the Report from interviews: the person alleged to have incapacity; the person seeking guardianship and/or petitioner; agencies providing services to the person alleged to have incapacity; and other persons, or agencies, which may provide relevant information.

#5. Do all Court Visitors/Guardians ad Litem have to complete the same report form? Where is it located?
All court visitors/guardians ad litem appointed as a result of nomination of the OPG, as potential guardian and/or conservator, must utilize the Visitor or Guardian ad Litem Report When the Public Guardian is Nominated to be Appointed (CC 16:2.93) as required by court rule §6-1433.01. Public Guardian nomination procedures..."(E) The visitor or guardian ad litem report shall comply with Neb. Rev. Stat. §30-2619.03 and to assist the Office of Public Guardian fulfill its duties mandated by the Public Guardianship Act, the report will include a standard form approved by the State Court Administrator's Office to include information required by Neb. Rev. Stat. §30-2619.01.."

The report form can be found online on the Supreme Court forms list.

All court visitors/guardians ad litem appointed by the court may use the report form. It would be preferable that the court visitor/guardian ad litem complete the Court Visitor Training provided by the Office of the Public Guardian for a full understanding of the screening process and report.

#6. Can paid Court Visitors/Guardians ad Litem take the OPG Court Visitor Training?
Yes, an individual can take the Court Visitor training provided by the OPG. A fee is charged to take the training for individuals who do not agree to volunteer for cases where the OPG is nominated. The training curriculum consists of 12 online modules and 6 hours of live training with the OPG's Education and Outreach Coordinator and counts for 11 CLE for attorneys. The cost of the training is $175, unless an attorney agrees to take at least one pro bono case in which the Office of Public Guardian has been nominated and then the fee drops to $25. If attorneys wish to be permanent Volunteer Court Visitors/Guardians ad Litem for cases in which the OPG is nominated, the cost of the training is waived completely.

Individuals interested in the Court Visitor training should contact the Office of the Public Guardian's Education and Outreach Coordinator (402.471.8839) to request an application and additional information.

#7. Does the OPG Court Visitor Training qualify for CLE?
The OPG Court Visitor Training consists of 12 online modules. Completion of the modules provides an attorney the opportunity to receive 5 hours of CLE. The 6 hours of live training, usually provided in two three-hour sessions, provides an attorney the opportunity to receive 6 hours of CLE. This allows attorneys to collect a total of 11 CLE.

VOLUNTARY COURT VISITOR PROGRAM

#8. Why has the Office of the Public Guardian (OPG) implemented a Voluntary Court Visitor Program?
In order to assist with the potential increased need of Court Visitors for the Public Guardianship process the OPG has developed a Volunteer Court Visitor Program. The OPG Volunteer Court Visitor Program will train visitors to use the screening tool and completion of the required reporting form. Using these well-trained volunteers will also reduce the cost to counties that are, otherwise, required to pay for court visitors and guardians ad litem. Neb. Rev. Stat. §30-2619.01(2014). The National Association of Court Management, Adult Guardianship Guide: A Guide to Plan, Develop and Sustain a Comprehensive Court Guardianship and Conservatorship Program points out, "In light of budget restrictions, volunteer monitor and visitor programs are becoming more commonplace, as the courts look to their local community to help provide oversight." To recruit volunteer court visitors for the Volunteer Court Visitor Program, the OPG staff have met with community providers, stakeholders, higher education programs training professionals, and advocates of adults with incapacity due to: cognitive impairment, mental health issues, developmental disabilities, medical issues, and substance abuse.

#9. What are the components of the Voluntary Court Visitor Program?
To become a Volunteer Court Visitor, interested individuals must complete an application, an interview, a criminal history background check, 12 online educational modules, and 6 hours of live training.

The 12 online educational modules include:

  1. Introduction to Guardianship;
  2. Guardianship Authority;
  3. Surrogate Decision-Making;
  4. Conditions of Potentially Incapacitated Persons or Wards;
  5. Living Arrangements of Potentially Incapacitated Persons;
  6. Common Problems;
  7. Abuse, Neglect, Exploitation; 
  8. The Interview; 
  9. Effective Communication;
  10. Community Resources;
  11. Directory of Legal and Medical Terms; and
  12. Introduction to the Court Visitor Screening Tool and Report Form

The curriculum is available to educate both Volunteer Court Visitors and paid Court Visitors/Guardians ad Litem appointed by the courts.

#10. How do I become a Volunteer Court Visitor?
If you are interested in becoming a Volunteer Court Visitor for the Office of the Public Guardian, please contact the OPG Education and Outreach Coordinator at 402.471.8839.

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This page was last modified on Monday, January 30, 2017