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.