This Guide is formatted as frequently asked questions, followed by answers. Many of the answers include links to more information, as indicated by text that is blue. In this Guide you will find:
It is likely that you are reading this material because you are concerned about the well-being of a family member, friend, or other vulnerable person and want to know more about guardianships or conservatorships. This Guide is intended to provide information to assist you in learning about guardianships and conservatorships in Nebraska, the duties and responsibilities of serving as a guardian or conservator, what the reporting requirements are, what the legal and court processes might be, and other resources to assist you in protecting the interests of your loved one or protected person.
Below is a list of brief definitions that will help you as you read this Guide:
Best Interests: The course of action that maximizes what is best for an individual, considering the least intrusive, least restrictive course of action available given the needs of the individual.
Conservator: An individual, business or entity appointed by a court to manage the estate, property, and/or other business affairs of another individual.
Estate: An individual’s land, possessions, or money.
Fiduciary: A person who handles the financial affairs of someone else. This person might be a conservator, trustee, or guardian. It is also a term used by the Veteran’s Administration to designate someone who manages a veteran’s financial benefits.
Full Guardianship: A guardianship in which all of the incapacitated person’s power to make decisions has been transferred to the guardian, except for those so personal that they cannot be transferred.
Guardian: An individual who is appointed by a court to make decisions on behalf of a person found to be incapable of managing his or her own affairs.
Guardian Ad Litem: An individual who is appointed by a court to represent the person’s best interests during court proceedings.
Incapacitated Person (Incapacity): An individual who is impaired because of mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or other causes. The impairment must be to the extent that the person does not have the sufficient understanding or the ability to make or communicate responsible decisions concerning himself or herself. The term “vulnerable adult” may also be used.
Interested Party: Generally a person such as a spouse, child, parent, or someone who could be an heir to the estate of a ward or protected person. It may also be any person who may wish to step forward to express an interest in the well-being of the ward or protected person. An interested person also includes any governmental agency (e.g., Veterans Affairs, Social Security, and State Health and Human Services) paying benefits on behalf of the ward, incapacitated person, protected person, or minor; and any person designated by order of the court to be an interested person.
Least Restrictive Alternative: A mechanism, course of action, or environment that allows an individual to live, learn, and work in a setting which places as few limits as possible on the individual’s rights and personal freedoms as is appropriate to meet the needs of the ward.
Mediation: A negotiation or discussion that is facilitated by a neutral, third party proficient as a mediator.
Protective Payee: A person assigned by the Nebraska Department of Health and Human Services to receive public assistance payments.
Protected Person: A minor or other vulnerable adult for whom a conservator has been appointed.
Representative Payee: A person appointed by the Social Security Administration to receive and manage benefits administered through the Social Security Administration.
Temporary Guardian: When an emergency exists, a person appointed by the court to temporarily act as guardian when an individual is alleged to be incapacitated and has no guardian.
Testamentary Guardian: A guardian who is assigned in a person’s Last Will and Testament to serve as a guardian, typically for a minor child.
Ward: A person for whom a guardian is appointed.
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 these vulnerable persons by providing court-appointed representatives to act on their behalf.
A2: A guardian is responsible for the care of the person or property, or both, of another person, who is incompetent to act for himself or herself. In other words, 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.
Guardianships serve as a way for people to get 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 still 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. NebGuide G1594.
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 whom 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. NebGuide G1591. See also Surrogate Decision Making.
A3: A conservator manages the financial and business responsibilities of a protected person. A 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. Guardians have a fiduciary relationship with their ward, which means they are in a position of trust and must act in the best interests of their ward. A full guardian has the power to:
A5: Guardianships or conservatorships are created by a person who files a Petition for Guardianship in the county in which the alleged vulnerable adult resides. After filing a petition, the court considers the question: is the person is truly incapacitated? If satisfied by clear and convincing evidence that the person is incapacitated, the court will form a guardianship or conservatorship if it believes such measures are necessary and are the least restrictive alternative available. Least restrictive alternative may mean the court could order a "limited guardianship" meaning that only some decisions (such as medical and living arrangements) are to be decided by the guardian whereas other decisions (purchasing daily necessities) are made by the ward. While the law states that guardianships will be a "limited" one unless the court deems full guardianship necessary, the majority of guardianships are "full." Neb. Rev. Stat. § 30-2620.
Names of individuals willing to serve as guardians and conservators are nominated (identified in the petition) by the petitioner. The judge then reviews the information about the nominee, and if found appropriate, the individual is appointed by judges. Often, but not always, guardians and conservators are a family member of the vulnerable adult. Neb. Rev. Stat. § 30-2627.
A6: The court will specify what type of guardianship or conservatorship it is creating. The following account for the different types of relationships:
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:
However, a ward’s right to marry, divorce, and to procreate may be controlled by the guardian or 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, Rights of an Individual Under Guardianship.
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, dieting 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.
For more information, see NebGuide G1593.
A9: As a legal relationship, guardians must follow the court rules that apply to guardianships. Nominated guardians must disclose certain information in their initial petition for guardianship. 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 forms are received, 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.
Guardians also have regular reporting requirements and annual accounting, discussed in Part VI: Reporting Requirements.
A10: Yes. A person can be both guardian and conservator for a ward. If the ward has a significant amount of assets, the court will appoint a conservator to manage the ward’s finances.
A11: Yes. There are number of rules to follow once you become guardian or conservator:
A12: The duties of a guardian or conservator end when one the following takes place:
13: If a guardian or conservator dies or is incapacitated, the guardianship or conservatorship over the ward itself 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.
For the following questions, please reference the Flowchart found in Part X: Flowchart of Procedures for Nebraska Guardianships.
A14: Aside from a 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. 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 similar to its guardian appointments.
A15: Start by filing a petition for a finding of incapacity and appointment of a guardian. 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 Part IX: Additional Resources for Court and Agency References.
To verify the allegations of incapacity, the court may appoint a visitor to interview the alleged incapacitated person. Neb. Rev. Stat. § 30-2619.01. Within 60 days of the guardianship petition, the visitor will file a report evaluation, 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 days to file a response. Neb. Rev. Stat. § 30-2619.04.
After the petition is filed, the court will issue an order setting a hearing for whether a guardian or conservator should be appointed. 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 the care or custody of the incapacitated person. If there is no applicable spouse, children, or parents, at least one of the closest adult relatives of the alleged person must be given notice. Be sure to check with 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 can hear each party. If the court decides the person needs a guardian or conservator, then the court will issue an Order of Appointment.
A16: The person nominated in the petition to serve as guardian or conservator must complete and submit the following reports to the court, as required by law. Neb. Rev. Stat. § 30-2602.02. More information on how to obtain the reports is found on the Nebraska Supreme Court website.
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 forms within 30 days from the Order:
If the guardianship or conservatorship has “restricted funds,” then you 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 the aforementioned forms filed and requirements are met, you will be issued your “Letters of Guardianship or Conservatorship.”
A18: Once you receive your Letters of guardianship or conservatorship, you must file the following with the court:
A19: Unless waived by the court, 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 for those appointed as guardian or conservator, and classes are taught by professional educators and often joined by volunteer attorneys. Approved training is offered by the following organizations:
Training must be completed and a Certificate filed with the court within 90 days of appointment.
A20: Every year after receiving Letters of guardianship or conservatorship, no later than 30 days after the anniversary of your appointment, you need to complete and submit the forms found in your respective guardianship or conservatorship Packet. Completed forms must be submitted to the court that appointed you. The court will send you a notice 45 days before your due date to remind you, so it is important to keep a current mailing address with the county court in which the guardianship is filed.
A21: Beginning in 2013, required annual reporting forms are bundled in five distinct packets (A, B, C, D, E), specific to each type of guardianships or conservatorships:
The packets are designed to simplify the reporting process for guardians and conservators, and to provide the information which courts are required by law to collect. The packets did not change deadlines for filings or most information users must report.
A22: The court will specify what type of guardianship or conservatorship it has created. The type of guardianship or conservatorship should be designated at the top of your Orders Appointing Guardians and Conservators and Approved Monthly Budgets (if applicable), and in your Letters of Guardianship or Conservatorship.
A23: If additional assets worth more than $500 are received during the year, you must file a Notice of Newly Discovered Assets form within 30 days.
A24: If you fail to file any of the required reports on time, then you will receive an Order to Show Cause. This means you will be required to appear in court to explain why the report was not filed.
A25: If you know that you will not get your annual reports in on time, put the following in writing and send it to the court:
A26: Yes. However, some of the annual reporting requirements may be waived for good cause shown if the guardian petitions the court. The procedure for waivers is found in UCCR § 6-1445.01.
A27: Yes. Guardians are required to complete an Updated Inventory and Accounting every year. If you have control over all of your ward’s financial transactions, property, or assets, you must file a complete Updated Inventory and Accounting each year. If you only have control over some of your ward’s financial transactions, property, or assets, then you need to file an Updated Inventory and Accounting of the ward’s financial transactions, property, or assets over which you do have control.
Remember to refer to your Order of Appointment to see what the court has specified as your responsibilities to your ward and for reporting.
A28: This question asks about two different annual report forms: the Updated Annual Inventory and the Annual Accounting. All guardians are required to complete an Updated Inventory every year, regardless of whether you control the ward’s assets or not. Keep in mind that the Updated Inventory of the ward’s assets (such as bank accounts, property, vehicles, etc.) is based on information and knowledge that you have that is reasonably available to you concerning the ward.
Guardians do not need to file an Annual Accounting along with the Updated Inventory if you are not handling financial transactions or managing the Ward’s funds, since you do not have control over their financial transactions, property, or assets.
A guardian may apply to the court for an order stating the guardian shall have no authority over the estate of the ward. If this order is approved, the annual filing of the Updated Inventory may be waived by the court. However, if such a guardian becomes a Representative Payee or has control of other assets of the ward, the guardian must notify the court within 7 days of becoming a Representative Payee and shall apply to the court to have the guardian's Letters appropriately modified and file an Annual Accounting with the court. UCCR § 6-1442.02.
Refer to your Order of Appointment to see what the court has specified as your responsibilities to your ward and for reporting.
A29: A guardian or conservator may request the court allow them to file a Court-Approved Budget each year that summarizes the expenses expected for the coming year. Individuals under such court approval must use Packet B. The budget can allow for payments such as rent, room, board, and fees at the end of the annual reporting period. The guardian must file a report summarizing the payments made, including any beyond the estimate, a copy of the last bank statement, and an inventory at the end of the year, as well as request a budget for the next year. The budget might not require the same level of detail that the Annual Accounting has and may help streamline the process, especially for wards that do not have significant assets.
A30: Generally the budget takes the place of Annual Accounting. But if the court determines that filing an Annual Accounting is necessary, it can still order it. The budget forms are in many ways similar to the Annual Accounting.
A31: The court can authorize the budget at a hearing after providing notice to all interested parties. If there has been a waiver of notice and hearing signed by all interested parties, the court may enter the order without a separate hearing.
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. A person “interested in welfare” should not be confused with the “interested party.”
A33: No. The only time a guardian is required to notify a potential interested party is at the initiation of the proceeding. If the potential interested party fails to return the form indicating they wish to remain a party, they are considered a non-interested party and you as the guardian are no longer required to mail copies of documents filed with the court or notice of court hearings.
A34: The petition must nominate who is to be appointed as the guardian or conservator. You can try to negotiate an acceptable nomination with the interested parties involved. One possible approach to resolve who should be guardian is mediation. Mediation is a confidential process for resolving disagreements that is facilitated by a trained, neutral third-party mediator. The goal of mediation is to give 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 any time agreed upon. Nebraska has six regional mediation centers across the state.
Keep in mind that if someone challenges your petition for guardianship or conservatorship, that will change the proceedings into what is called a “contested guardianship” or “contested conservatorship.” Contested guardianship or conservatorship proceedings can negatively impact relationships and be emotionally taxing for everyone involved. Intimate details concerning the lives of the ward and of the prospective guardian or conservator will likely surface in a public forum. 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 of going to mediation when there is disagreement among friends and family members. Mediation:
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 at hand. www.themediationcenter.org/faq.html.
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:
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.
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.
For input or questions regarding Guardianships and Conservatorships, send an email to: firstname.lastname@example.org
Other Forms: http://supremecourt.ne.gov/forms