A1:         Most people at some point in their life will know a loved one who is unable to make responsible decisions about their finances, property, living situations or care.  Guardianships and conservatorships are legal relationships designed to protect vulnerable persons by providing court-appointed representatives to act on their behalf.  (Nebraska Conservatorship Flowchart, Nebraska Guardianship Flowchart, Nebraska Guardianship and Conservatorship Flowchart)

A2:         A guardian is a person or institution appointed by a judge to take care of and be legally accountable for a person who cannot take care of himself or herself. 

The person that the guardian is responsible for is called the ward.  Wards are either minor children or incapacitated persons. 

• A minor child is someone who is under the age of majority, which is under the age of 19 in the state of Nebraska. Neb. Rev. Stat. § 43-2101.
• An incapacitated person is an adult who is impaired because of one or more of the following reasons:
  • Mental illness.
  • Mental deficiency.
  • Physical illness or disability.
  • Chronic use of drugs or chronic intoxication.
  • Other causes (except minority) “to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself.”                             

Guardianships provide people the legal authority to make decisions for a person who is in need of continuous care.  Guardians must act in the best interests of their ward while taking into account their ward’s desires and preferences.  Guardians must not, in any circumstances, act in a way that is self-serving or in a manner that is adverse to their ward’s well-being. 

It is important to remember that guardians are granted a great deal of power over their wards.  For instance, an incapacitated adult may no longer be able to arrange for their own medical care, make financial decisions, or even decide if they would like to marry once a full guardianship is ordered. Because of the confining nature of guardianships, other “less restrictive” means should be explored before pursuing a guardianship.   See also Surrogate Decision Making In Nebraska.

A3:         A conservator manages the financial and business responsibilities of a protected person.  The protected person could be a child or an adult for whom a conservator has been appointed or protective order has been made. Neb. Rev. Stat. § 30-2601(3).

A4:         Guardians have the power to care for their ward to the extent that the court allows them to do so.  The Court will order the guardian to have the authority to meet the specific needs of the ward.  Guardians are in a position of trust and must act in their best interests.  A guardian with full authority has the power to:

1. Establish where the ward will live, within the state or elsewhere with court’s permission;
2. Arrange for the ward’s medical care;
3. Take care of the ward’s personal effects (clothing, furniture, vehicles, personal items, etc.);
4. Give the necessary consent, approval, and releases on behalf of the ward;
5. Arrange for training, education, or other habilitating services for the ward;
6. Apply for private or governmental benefits that the ward is entitled to receive;
7. Take the necessary steps to ensure that anyone required to help support the ward does so;
8. Enter into contractual arrangements on behalf of the ward, if no conservator is appointed;
9. Receive money and tangible property on behalf of the ward and use these funds for the ward’s room and board, medical care, personal effects, training, education, and services;       
10. Utilize any other power the court may delegate.

Neb. Rev. Stat. § 30-2620(a), § 30-2628(1)-(3). 

A5:          To set up a guardianship or conservatorship, a Petition for Guardianship or Conservatorship (or both) is filed in the county where the alleged vulnerable adult or minor lives. The petition includes the reason(s) the guardianship is necessary, names and addresses of interested persons and the name or names of individuals willing to serve as guardian(s) and/or conservator(s).  The Court will schedule a hearing and notice will be served to interested persons.

At the hearing, the Court will consider the evidence presented to determine if the proposed ward is truly incapacitated.  If the Court finds the proposed ward is incapacitated, an order for the least restrictive alternative available will be issued. 

The court may order a "limited guardianship" in which only some decisions (such as medical and living arrangements) are to be decided by the guardian while other decisions (purchasing daily necessities for example) are made by the ward. While the law states that guardianships will be "limited" unless the court deems a full guardianship is necessary, the majority of guardianships are "full." Neb. Rev. Stat. § 30-2620.

Often, but not always, guardians and conservators are a family member of the vulnerable adult.  Neb. Rev. Stat. § 30-2627.

A6:       In addition to identifying any limitations, the court will specify what type of guardianship or conservatorship is needed.  The following account for the different types of relationships:

• Guardian with control of the ward's assets.  This guardian has control of the ward’s property, money, assets, possessions or income (including social security or other benefits). The guardian’s responsibilities will include an annual report. 
• Guardian with a Court-Approved Budget.  If the guardian has control of the ward’s assets, the court can approve an annual budget, which simplifies the annual reporting process.
• Conservator.  A conservator who has been appointed to oversee the vulnerable adult's financial and property decisions will file a report with the court annually regarding the financial activity the conservator has taken on behalf of the protected person or minor.   
• Both guardian and conservator.  A person who has been appointed both guardian and conservator as described above.
• Guardian without control of the ward's assets.  A guardian whose Letters of Appointment state that the guardian has no authority over the ward’s asses should file an annual report on the ward’s condition.

Neb. Rev. Stat. § 30-2647

Additional information regarding the requirements of different types of guardianships or conservatorships can be found in Question 21.

A7:         A ward retains all the rights that a citizen of the United States would have, except those that the court grants to the guardian.  The rights that the ward retains include:

Right to privacy, both regarding the body and with communications with others via mail, phone, or personal visits;

• Right to appropriate services based on their needs;
• Right to have the guardian take into account their desires and preferences;
• Right to a safe, sanitary living environment;
• Right to the least restrictive living arrangements as possible;
• Right to not be discriminated against based on race, religion, creed, sex, age, marital status, sexual orientation or political affiliations;
• Right to have explanations of any medical procedures or treatment;
• Right to have personal information kept confidential;
• Right to speak privately with an attorney, ombudsman or advocate; and
• Right to petition the court to terminate a guardianship or to bring a grievance against a guardian.

However, a ward’s right to marry, divorce, and to procreate may be controlled by the court, depending on the scope of the guardianship and the nature of the circumstances.  A guardian has similar powers, rights and duties respecting their ward as a parent has respecting their children.  Neb. Rev. Stat. § 30-2628.  See generally, Surrogate Decision Making In Nebraska.

A8:         A guardian must protect the personal and financial interests of their ward.  Guardians must obtain legal and financial documents important to their ward (estate information, health insurance, medical records, etc.).  Guardians are expected to keep information regarding their ward confidential unless disclosure is necessary to protect the ward. 

Guardians are expected to maintain relationships with the ward’s professional service providers, including doctors, attorneys, and financial consultants.  Guardians should have regular contact with such individuals to plan for the best interests of the ward.

Guardians should respect their wards and attempt to include them in making important decisions.  Guardians should understand the personal desires of their ward and should not take unnecessary control over their ward’s life.  Wards will maintain control over many decisions (including choices about friends, social functions, diet and exercise, etc.).

Guardians should reevaluate their ward’s condition periodically.  If the ward’s condition improves, the guardian must return to court for a legal reduction of their control over the ward. 

A9:         As a legal relationship, guardians must follow the court rules that apply to guardianships.  Nominated guardians must disclose certain information to the Court before they can be appointed (See Q16).  After being appointed, guardians must abide by the court order that lists their specific duties.  Furthermore, the guardian must complete and file certain forms as specified in the court order (see Q17).  Once all the completed forms are filed with the Court, guardians will receive “Letters of Guardianship,” which they will use to secure appropriate financial access, gain guardianship training certification, and file for control of their ward’s real property (see Q18). (Nebraska Conservatorship Flowchart, Nebraska Guardianship Flowchart, Nebraska Guardianship and Conservatorship Flowchart)

Guardians also have regular reporting and annual accounting requirements as addressed in A6. Requirements.

A10:       Yes.  A person can be both guardian and conservator for a ward.  If the ward has significant assets, the court may appoint a separate conservator to manage the ward’s finances.

A11:       Yes.  There are number of rules to follow once you become guardian or conservator:

• NEVER co-mingle your ward’s finances with your personal finances. You may need to open new accounts immediately in your ward’s name, if necessary.
• You cannot reimburse yourself more than $500 or pay an attorney more than $1,000 each year without the Court’s approval.
• You cannot make any ATM withdrawals or receive cash back on a transaction from any account without a Court order. If an account is restricted then you cannot access that money without a court order.
• You must notify the Court immediately if you or your ward has a change in address.
• You must notify the Court within 10 days if the ward dies.
• You cannot move the ward out of state without the Court’s permission.
• If you find or receive additional assets for your ward, you must report them to the Court within 30 days using the Notice of Newly Discovered Assets as described under Question 23.
• You need to get court approval and a court order in order to resign as guardian or conservator.

Quick Reference for Guardians/Conservators, Form No. CC 16:2.7.1.

A12:       The duties of a guardian or conservator end when one the following takes place:

• For a minor ward, when the ward reaches the age of majority, has been adopted, has been married, or has joined the military.
• For an adult ward, when the ward dies or the ward’s incapacity no longer exists.
• When the guardian or conservator is officially terminated by the court.

Neb. Rev. Stat. § 30-2614.

A13:          If a guardian or conservator dies or is incapacitated, the guardianship or conservatorship over the ward does not end.  A successor guardian or conservator will need to be appointed.  Resignation by a guardian does not terminate the guardianship until approved by the court.  Often, the court will require a replacement guardian or conservator before approving a resignation.  Neb. Rev. Stat. § 30-2614.

A standby guardian can be appointed to ensure continuity of care if a guardian or conservator dies or becomes incapacitated.  (Nebraska Conservatorship Flowchart, Nebraska Guardianship Flowchart, Nebraska Guardianship and Conservatorship Flowchart)

A14:       With few exceptions, any competent person or suitable institution may be appointed guardian of an incapacitated person.  Neb. Rev. Stat. § 30-2627.  The court seeks to appoint a guardian who will serve the best interest of the ward.  Direct relatives are favored for the role of guardian, but the Court is allowed discretion in its appointment.  The Courts are also directed to hear the express wishes of the ward.  In some cases, the Court might require guardians to furnish a bond in accordance with Neb. Rev. Stat. § 30-2640 and § 30-2641.

Similarly, the Court may appoint an individual or corporate trustee as conservator of a ward’s estate.  Neb. Rev. Stat. § 30-2639.  The court prioritizes conservator appointments in much the same way as guardian appointments.

A15:       At this time, templates or sample forms are not available for a petition for a finding of incapacity and appointment of a guardian or conservator.  Neb. Rev. Stat. § 30-2619.  To file the petition, it is strongly recommended that you consult with a lawyer who practices in the area of guardianship law. (see Additional Resources for Court and Agency References)

The court may appoint a visitor to interview the alleged incapacitated person to verify the allegations of incapacity.  Neb. Rev. Stat. § 30-2619.01.  Within 60 days of the guardianship petition, the visitor will file an evaluation with the Court, which is made available to the guardian ad litem, the proposed ward, and the petitioner.  The evaluation will include the visitor’s recommendations regarding the proposed guardianship.  Neb. Rev. Stat. § 30-2619.03.  Following this report, parties have 10 judicial days to file a response.  Neb. Rev. Stat. § 30-2619.04.

After the petition is filed, the Court will issue an order setting the matter for hearing. Petitioners will need to serve personal notice on the incapacitated person and his or her spouse at least 14 days prior to the hearing.  Notice must also be served on the incapacitated person’s parents, adult children, and anyone who is currently serving as guardian or conservator or who has custody of the incapacitated person.  If the person to be protected has no spouse, children, or parents, at least one of their closest adult relatives must be given notice.  Petitioners need to check the statutes to ensure all parties are properly notified, or consult with a lawyer to ensure proper notice.  Neb. Rev. Stat. § 30-2625, § 30-2634. 

At the hearing, the Court will determine whether the person needs a guardian or conservator by clear and convincing evidence.  If a party objects to someone being appointed, then the matter is considered “contested” and will be set for trial at a later date so the Court has time to hear each party.  If the Court decides the person needs a guardian or conservator, then an Order of Appointment will be issued.

A16:       The person nominated in the petition to serve as guardian or conservator are required by law to complete and submit the following reports to the court.  Neb. Rev. Stat. § 30-2602.02.  Information on how to obtain the reports is found on the Nebraska Supreme Court website.

1. A complete and detailed credit report from any established credit reporting agency/business is accepted. (A credit score without supporting information is not sufficient.)
2. A Sex Offender Registry check: Nebraska residents use the Nebraska Sex Offender Registry and complete an Affidavit of Sex Offender Registry Search;
3. A Criminal History check: Nebraska residents use the Nebraska State Patrol Criminal History Reports for Arrest and Prosecution sheet; and
4. A Child/Adult Abuse and Neglect Registry check provided by the Department of Health and Human Services.

These reports must be completed and submitted to the court at least 10 days prior to the appointment hearing date.  A person can ask the court to waive one or more of these reports for good cause. 

NOTE: If a petitioner requests an immediate hearing because of an emergency need of a temporary guardianship or conservatorship, the background checks are not required. 

A17:       As a newly appointed guardian or conservator, there are specific forms that must be filed. When you receive your Order of Appointment from the court, you need to file the following within 30 days from the Order:

• Acceptance of Appointment (Forms No. CC 16:2.2.1 - CC 16:2.2.9);
• General Information Sheet;
• Address Information Sheet;
• Personal and Financial Information;
• Inventory and Affidavit of Due Diligence – sent to all interested parties and to ward with a Waiver of Notice Form;
• Financial Institution Receipt of Orders;
• Proof of Restricted Account (if applicable); and
• Proof of a bond (if required).

If the guardianship or conservatorship has funds in an account which requires a court order to access, the guardian must file a Proof of Restricted Account from a Depository or Financial Institution  within 10 days of appointment. If you are working with a lawyer, he or she will assist you with these steps and filing of the forms.

After all of these requirements are met, you will be issued “Letters of Guardianship or Conservatorship” which give you authority to serve.     

A18:       Once you receive your Letters of Guardianship and/or Conservatorship, it is your responsibility to provide your Letters to all institutions and agencies maintaining your ward’s assets.  You must file the following forms with the Court within 30 days after they have been completed by the appropriate party:                                                                                                                                          

1. Financial Institution Receipt of Letters.  This shows you provided your Letters to each financial institutions (banks, credit unions, etc.) where the ward has assets. This form must be attached to a printout from each financial institution that details the type and amount of each account held by the ward.
2. Certificate of County Court Proceeding Involving Real Estate.  This will ensure any communication regarding the wards real estate to your attention.

(Nebraska Conservatorship Flowchart, Nebraska Guardianship Flowchart, Nebraska Guardianship and Conservatorship Flowchart)

A19:       New guardians and conservators must complete a training program approved by the State Court Administrator. Neb. Rev. Stat. § 30-2627(d).  Training provides detailed information to assist guardians or conservators understand their responsibilities and resources available to help them meet the needs of their wards.

A list of upcoming approved training offered by the Office of Public Guardian can be found here.  Training must be completed and a Certificate filed with the court within 90 days of appointment.

​

A32:       Any person interested in the welfare of the protected person may petition for removal of a guardian if it would be in the best interest of the protected person.  This means that almost anyone who is interested in the life of the ward can seek to have a guardian removed or a new guardian appointed; even the ward can petition. 

A33:        Interested persons are defined by law and entitled to notice regarding the guardianship/conservatorship and welfare of the protected person.  However, an interested person can waive their right to receive the annual reports by filing a Waiver of Notice with the Court.  This does not affect their standing as an interested person or their receipt of notice of other activity in the case. 

If as guardian you are concerned that it would not be in the best interest of the protected person for someone who is an interested person under the law to receive annual reports or other information about the ward, you can tell the judge about those concerns when you are appointed, or you can submit a written explanation and request for direction to the judge.  § 6-1433

A34:    A judge will only appoint a guardian if it is the least restrictive way to meet the needs of the person to be protected.  It is best to work with your loved one’s support group to identify other options before you explore a guardianship for them.

You can also try to negotiate with the interested parties who would be the best choice to nominate be the guardian(s) or conservator(s) 

If you need help in reaching an agreement, Mediation may be helpful.  Mediation is a confidential process for resolving disagreements that is facilitated by a trained, neutral third-party mediator.  The process gives all parties a chance to be heard in a safe, comfortable environment where the family and others may decide a fair solution.  Mediation sessions can be voluntarily scheduled at convenient a time and can be held remotely. (see Q35)

If there is a disagreement as to the capacity of an individual to care for themselves, or the suitability of the individual nominated to serve as guardian or conservator, the hearing before a judge  allow the various parties to present information and arguments to the judge, so the judge will be able to make a decision. Intimate details concerning the lives of the ward and of the interested parties will likely surface in a public forum. These “contested” guardianship or conservatorship proceedings can negatively impact relationships and be emotionally taxing for everyone involved.

If a guardianship or conservatorship case is contested, the Court has the power to order all parties to mediation.  In that circumstance, all parties must participate.  Neb. Rev. Stat. § 25-2911(1)(d).

A35:       There are a number of benefits to mediation when there is disagreement among friends and family members, including:

• Personalized solutions to difficult problems. You and the other participants have direct input in the solutions agreed upon, instead of relying solely on a judge’s opinion.
• Not only can resolve legal issues, but also helps with personal or familial problems.
• Preserves relationships by using a collaborative process instead of an adversarial process.
• Reduces the likelihood of future, reoccurring disputes by helping the other participants find ways avoid or manage future disagreements.
• Can save time and money.

A36:     There may be one or two mediators who will facilitate discussion by asking questions to help those involved identify the key conflicts and to make sure issues are clear to the participants.  Everyone will have an opportunity to be heard and to share their viewpoint in a structured environment.  The mediators will help participants engage in creative and collaborative dialogue to determine possible solutions by exploring ways to come to an agreement to resolve the issues.  http://themediationcenter.org/pg5.cfm.

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 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 Attorneys: these document allow one person or people 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.
  • 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. 
  • 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.

Please see our list of Agency References for more information.

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.  Please see our list of Agency References for more information.

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.

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 19^th 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.