What Is Guardianship?
Legal guardianship in Nebraska, just like in every other State, is a Court proceeding that places the setting aside of a person’s decision-making related to financial/legal matters or medical decisions. Statutorily this is found at Neb. Rev. Stat. 30-2601 et. al. where it names a legal guardian as the person’s "Conservator." As such, a conservator is appointed by the Court to be a party to a proceeding when it is established that someone is unable to take care of their financial, legal or medical matters. This Court action can either be undertaken for a minor or an adult.
The important thing to note about appointing a legal guardian is that this process is always initiated by filing a petition with the Court. Then this proceeding is prosecuted by the nominated person to serve as the legal Guardian of the minor or incapacitated adult before the Court can make that appointment . Therefore, the lawyer that handles legal guardianship in Nebraska must have solid experience first in protecting the legal rights of property owners to ensure they are not being taken advantage of by someone else. Moreover, given the serious legal claims involved, an experienced lawyer must also ensure that the petitioner truly does need a guardian appointed for their minor or incapacitated adult loved one.
This is why appointing a legal guardian in Nebraska has become such a high legal hurdle to legally appoint someone as a guardian. So given this difficult legal burden, most often the lawyers that will do this work will likely have a higher rate because that means these guardianship cases often involve more work. As such, it is very possible to discover that the costs associated with a legal guardianship for a minor or incapacitated adult can be quite extensive.
Forms of Guardianship
In Nebraska, there are different types of legal guardianship for both minors and incapacitated adults.
Legal guardianship of a minor In Nebraska, a requirement for a parent or both parents to be removed from the minor and appointing a legal guardian over them. This is a voluntary or involuntary process. For a voluntary legal guardian come into place, the minor’s parents are required to give the legal permission for the purposes of appointing a guardian. The legal guardian must be named and consented by the parent. The voluntary process of appointing a legal guardian over a minor is known as guardianship by consent. The above process usually occurs in the cases of divorce -where the parents are sharing the custody and one of the parent gets so busy and out of touch with the minor’s day-to-day affairs. In this regards, it would require that custodial parent to designate another suitable person to care for the minor and give all permission for the same. Also, the guardianship by consent can occur when both parents of a minor decide to give legal guardianship responsibilities to another person who may be a relative, family friend, or anyone they trust who consent to take legal responsibility for the minor. Where the parent does not consent to the appointment of guardianship over a minor it is considered involuntary legal guardianship. Involuntary legal guardianship comes into play when the parent(s)’ parental right is completely terminated – usually due to the parent having inability to care of themselves and where their mental /physical health condition cannot allow them, for instance, be a functional parent.
Legal Guardianship of Adults The appointment of a legal guardian over an adult work in the same way as guardianship over a minor. It is however important to mention that an adult can initiate a legal guardian by submitting a written application stating that they require a guardian. This is called voluntary legal guardianship, and it operates in a similar way as guardianship by consent with parents of a minor.
Temporary Legal Guardianship The temporary legal guardianship over a minor is also voluntarily executed by the minor’s parent or parents. The temporary legal guardianship allows a parent to grant legal authority to another individual over their minor for a definite period of time. This is appraised in circumstances where the parents intend to embark on vacation overseas or on the run for a while with little guarantee of being available to care and provide for the minor. Similarly, temporary legal guardianship for adults must be voluntary from an adult’s perspective (i.e; where an adult is going away for some month and designate a legal guardian over their affairs).
Eligibility To Become a Guardian
In Nebraska, both professional and non-professional individuals can petition to become guardians. Non-professional guardians are family members, friends, or others who care for the individual. Professional guardians may be individuals, such as accredited members of a corporate fiduciary or charitable corporation with the power of trust company authority, or individuals or agencies approved by the Chief Justice of the Nebraska Supreme Court. To qualify, a person must be at least 19 years of age and reside in the state. If the petitioner resides outside the state, he or she must be a close friend or relative of the ward or have some special relationship with the ward. The Nebraska Legislature has determined that the guardian must have written information on the criminal background of the person for whom the guardian is sought. The Court considers the information and may decline to appoint an individual with a felony conviction involving moral turpitude or where a crime has some bearing on the present mental or physical condition of the individual.
Becoming a Guardian
In Nebraska, the application for legal guardianship consists of a series of steps, including filing petitions with the appropriate court and attending court hearings. It is important to prepare the paperwork carefully so that the process goes smoothly.
The first step in the process is to file a petition for appointment of guardianship. This two-page form asks for both general and specific information about the person to be appointed guardian. The petition is usually filed in the county where the proposed ward resides or where the petitioner resides if the proposed ward is not a resident of Nebraska. The petitioner is also required to file an affidavit that contains specific information, including a statement that the proposed ward is incapacitated; the name and address of the proposed ward; and the name and address of the proposed guardian.
An affidavit of mental and physical condition of the proposed ward is also required. This form is usually completed by an examining physician or other medical professional. This form determines whether the proposed ward is incapacitated and in need of a guardian. The form requires general and specific details about the proposed ward’s medical state. A copy of any protective arrangement recorded under the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) must also be attached. This act provides uniformity and guidance for cross-state matters concerning adult guardianship. Finally, the applicant may present any other document, including a will or power of attorney, that indicates the proposed ward’s desires about the guardianship.
After the applicant has filed the petition and attached all required documents, the court will set a hearing date. Notice of the hearing will be given to the proposed ward, the proposed guardian, and anyone else as prescribed by the court. The proposed guardian must then wait for the court to appoint a guardian ad litem. This is a person nominated by the court whose role is to represent the best interests of the proposed ward, or the person to be protected, in legal proceedings.
The proposed guardian must then attend the court hearing, where both the proposed guardianship and the appointment of the guardian ad litem may be discussed. After this process is complete and if the court orders that a guardianship is appropriate, only then will the proposed guardian be appointed.
Guardianship Rights & Duties
Among the various duties a guardian may have, some can be quite complex and require extensive time and resources. On the other hand, some of these responsibilities can be quite simple and rather straightforward. Various statutes and court rules combined with other law impose both general (some list specific duties) and specific duties on a guardian. Also, apparently not found under either Nebraska statute or court rule, the Court will generally look for a willfulness of failure to perform a duty. Below is a rather exhaustive list (almost certainly not all listed), in no particular order, of the duties of a guardian. Duties are grouped together by subject matter . Duty to Care for the Ward’s Person Perform all duties, powers and responsibilities of a parent of a minor child, except that as provided by state statute (Nebraska statute permits parent visitation with minor ward). Neb. Rev. Stat. ยง30-2629. Duty to Care for the Ward’s Estate Manage the Estate and Account to the Court Duty of the Guardian Ad Litem Investigate Ward’s Circumstances File Report with the Court Duty to Notify Duty to Seek Permission for Other Actions Order to Lease Order to Sell Order to mortgage Order to let stand as a substitution of collateral Order to consume Duty to Obtain Court Approval for Specific Actions
Ending Guardianship
Termination may occur because the purpose of the guardianship has been accomplished, or if it is no longer necessary. In either case, all interested parties must be notified and given an opportunity to be heard regarding the termination. The easiest way for a guardianship to be terminated is with the voluntary "release of guardian" document when the person under guardianship becomes competent to manage his or her own affairs or is able to handle the particular matter for which the guardian was appointed. Or, a guardianship may be terminated by a court order because the ward who has recovered competency applies for an order of discharge. In Nebraska, upon the motion of an interested person or the Court’s own motion, the court may terminate the guardianship and discharge the guardian when it appears that the purpose for which the guardianship was created has been accomplished, or that the ward no longer needs the services of the guardian because of changed circumstances.
Nebraska Guardianship Resources
There are a number of legal aid and advocacy groups available to assist Guardianship petitioners and respondents in Nebraska. For petitioners, you may qualify for free assistance from the Nebraska Volunteer Lawyers Project. This project provides free consultations in selected counties throughout Nebraska . The project matches volunteer attorneys with low-to moderate-income clients in need of legal assistance. If you are responding to a guardianship petition, the Nebraska Department of Health and Human Services has resources for protecting your rights. EnableConsult provides legal resources for Nebraskans with developmental disabilities seeking guardianship alternatives.