Ch. 6 - Q15: How does a person file a petition for guardianship or conservatorship

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Ch. 6 - Q15: How does a person file a petition for guardianship or conservatorship

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.