The Nebraska Legislature passed the Public Guardianship Act in 2014 through Legislative Bill 920. The Act states, “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.” Neb. Rev. Stat. § 30-4102.

The Public Guardianship Act, Neb. Rev. Stat. §§ 30-4101 through 30-4118, outlines the responsibilities and duties of the Office of Public Guardian. 

Generally, the Office of Public Guardian is to:

1. Act as guardian/conservator of last resort
2. Safeguard the rights of individuals by supporting the least restrictive alternative
3. Model the highest standard of practice to improve performance of all guardians and conservators in Nebraska
4. Act as resource to guardians/conservators for information
5. Provide training for newly appointed private/family guardians and conservators
6. Recruit members of the public and family members to serve as guardians or conservators
7. Make reasonable efforts to locate successor guardians/conservators
8. Develop a uniform system of collecting and reporting statistical data regarding guardians and conservators

The Public Guardian reports to the State Court Administrator for the overall administration of the office.

The Public Guardian is charged by statute with hiring a multidisciplinary team of professionals to fulfill the responsibilities of the Public Guardianship Act. The team includes:

• Director/Public Guardian
• Deputy Directory/Deputy Public Guardian
• Financial Operations Manager
• Business Manager
• Education and Outreach Coordinator
• Legal Counsel
• Associate Public Guardians
• Administrative Assistant - Intake
• Administrative Assistant - Case Aide
• Administrative Assistant

The Public Guardian shall assume all the duties and responsibilities of a guardian and conservator for any individual appointed to his or her supervision and may designate authority to act on his or her behalf to the deputy public guardian, associate public guardian legal counsel, and associate public guardians. The Public Guardian shall administer public guardianship and public conservatorship and shall serve as staff to the council.

The office:

1. Shall provide immediate response when a guardian or conservator is needed in an emergency situation;
2. Shall provide an option upon the resignation, removal, or discharge of a guardian or conservator so that there is no lapse in service to the ward or protected person;
3. Shall provide equal access and protection for all individuals in need of guardianship or conservatorship services;
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.

Office of Public Guardian
1540 South 70th Street, Suite 202
Lincoln, NE 68506
(402) 471-2862

Associate Public Guardians (APG) serve a designated geographic service area across the state. There are currently two office locations: the main office is in Lincoln at 1540 South 70th Street, Suite 202, with four APGs working from the administration office, and the second office is in Omaha where APGs 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.

Associate Public Guardians (APGs) have experience in a wide variety of social services and legal professions, strengthening the knowledge and skills of the OPG team. These professional backgrounds include: service coordination, 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.

Associate Public Guardians (APGs) are individually available Monday through Friday from 8:00AM to 5:00PM. Emergencies occurring outside of business hours can be directed to the on-call Associate at 402.302.0445. Non-emergency calls will be followed up on the next business day.

"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 by section 30-4115. The determination of necessity may require the court to ascertain whether there is any other alternative to public guardianship or public conservatorship." Neb. Rev. Stat. § 30-4112.

"The Public Guardian may accept an appointment as a public guardian or public conservator for an individual not to exceed an average ratio of twenty public wards or public protected persons to each member of the multidisciplinary team. When determining such average ratio, all full-time members of the office's multidisciplinary team may be counted." Neb. Rev. Stat. § 30-4115 (2).

Neb. Ct. R. § 6-1433.01. Public Guardian nomination procedures.

Neb. Ct. R. § 6-1433.02. Public Guardian.

Neb. Ct. R. § 6-1433.03. Office of Public Guardian Organizational Collective Account and document requirements for annual filing.

Neb. Ct. R. § 6-1433.04. Audit.

The Office of Public Guardian appointment process flowcharts are available - Nomination Process and Emergency Appointment Process.

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. Therefore, the goals of the court process, as set out in the rules, provide equitable access to incapacitated individuals, ensure compliance with the Public Guardianship Act, and manage the appropriate utilization of resources.

In accordance with research and best practice, the 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 become a conflict of interest and could also become a violation of due process.

Conflict of interest issues are outlined by Mary Joy 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.

An attorney will need to file a petition nominating the Office of Public Guardian (OPG).

The Nebraska Judicial Branch does not publish instructions or forms for the establishment of guardianship or conservatorship, nor can it recommend specific attorneys or legal services. General guardianship resources can be found on the Nebraska Supreme Court's website: Guardianship/Conservatorship in Nebraska.

The paradox of guardianships, and therefore an area of potential overreach for anyone serving as a guardian/conservator, is described by author Mary Joy 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.

The Application and Affidavit for Intervention on Behalf of the Ward/Minor Ward/Protected Person (instructions) is a form that tells the court of a safety, health, or financial concern regarding a ward or protected person, and can be used by anyone interested in the welfare of a ward/protected person.

If you are a ward and/or protected person and you have concerns 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. You can bring your concerns to the court's attention by written notice (a letter with your concerns) or through an attorney if you have one.

Origin/Authorization: Neb. Rev. Stat 30-4106. The Advisory Council on Public Guardianship is created. The council shall be appointed by the State Court Administrator, be comprised of individuals from a variety of disciplines who are knowledgeable in guardianship and conservatorship, and be representative of the geographical and cultural diversity of the state and reflect gender fairness. The council shall consist of the following members: A representative of the Nebraska County Court Judges Association, attorneys licensed to practice law in this state, social workers, mental health professionals, professionals with expertise in the aging population, developmental disability professionals, and other interested groups or individuals.

Terms: Neb. Rev. Stat. 30-4107. The State Court Administrator shall appoint initial members of the council for staggered terms of one, two, or three years as designated by the State Court Administrator. All subsequent appointments shall be made for terms of three years. Any vacancy on the council shall be filled in the same manner in which the original appointment was made and for the duration of the term vacated. Appointments of initial members of the council shall be made within ninety days after January 1, 2015. The council shall select a chairperson, a vice-chairperson, and such other officers as it deems necessary.

More information can be found HERE.

The Office of Public Guardian maintains a Resources page for private guardians and conservators. A variety of local, state, and national resources are available.

Private guardians and/or conservators may also contact the Office of Public Guardian at 402.471.2862 for 1:1 support. Please note that the Office of Public Guardian cannot provide legal advice, and your question may be best answered by an attorney.

The Office of Public Guardian provides training, education, and support to individuals serving as guardians and/or conservators. The course, Becoming a Guardian and/or Conservator, is required unless specifically waived by the Court. The course content, approved by the Nebraska Supreme Court, provides detailed information for those serving as guardian or conservator. The course is available in two formats. New guardians and/or conservators may access the course HERE.

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.

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)

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.

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.

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.

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.

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.

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 402.378.1771