What is Guardianship in Nebraska?
What is Guardianship in Nebraska?
In simplest terms, we could say "a guardian owns a person and makes decisions for him when he can’t make decisions for himself." However, there is much more to guardianships than just that simple explanation.
The term "guardianship" is a synonym to "conservatorship". A legal guardian is the individual appointed by the Court to make legal decisions on behalf of an adult or minor who suffers from some form of physical impairment or illness. The laws of the State of Nebraska are contained within the Nebraska Revised Statutes Chapter 30, Article 26. That name might seem familiar as the Revised Statutes of Nebraska are broken into Chapters containing Articles, which are then comprised of Sections – a Master’s Degree in library sciences could not help you navigate those waters without the guidance of an attorney! Suffice it to say that the rules for Guardianship can be found in the Chapters and Articles mentioned above and are quite encompassing of this area of the law.
Legally, a person in need of a guardian, referred to as "the Respondent," is a person who has become incapacitated due to mental or physical conditions . A Court will sign an Order appointing a guardian once it is determined that a Respondent will be unable to make decisions regarding their property and financial issues, medical, nutrition, shelter, personal, rehabilitation and safety matters, health care and safety, as well as education matters and expressions of freedom and religion. In Nebraska, this designation goes by the more broad name of Legal Conservator. To complicate matters, there are two different environments in which a guardianship can be established; voluntary and involuntary. While those in the medical community have seen a great increase in the number of individuals requesting voluntary guardianship, the legal profession continues to see an alarming rise in the number of applications for involuntary guardianship. While the later is often necessary, it is not without its own set of ethical and behavioral concerns. The Wilson Estates Law Blog will address these controversial issues more extensively in a forthcoming installment, for now let’s just say that the provisions of Nebraska law regarding Voluntary or Non-Voluntary (or Involuntary) Conservatorship are the same.
Nebraska Guardianship Types
There are several types of guardianship available under the Nebraska probate code. In Nebraska, a guardianship is available for a minor who has a disability, or for an incapacitated adult who requires protection and assistance due to a mental impairment or physical incapacity. There are two differences types of guardianship: full guardianship, where the power and authority of the guardian is complete; and limited guardianship where the requirements of the individual subject to guardianship are restricted. Under limited guardianship, upon petition to the court, the powers and duties of a guardian can be limited and tailored to the scope of the disability by excluding any powers and duties that either may not be necessary or may be given to an agency that has been appointed guardian by the Nebraska Department of Health and Human Services.
Other restrictions may also be imposed by the court upon the guardian, including creating a bond where the bond requirement may be waived in certain circumstances. Furthermore, the court must determine the length of time a guardian will serve before a new order is issued or before the guardianship expires. And, the court always follows the least restrictive alternative standard when issuing the order of guardianship based upon the belief that the least restrictive alternative takes into consideration that a guardian should do the least amount required to maintain the ward’s welfare.
How to Get Guardianship
The process for obtaining guardianship in Nebraska is relatively straightforward, with standardized forms available on the Nebraska Judicial Branch website. However, it is not a simple matter. It requires careful preparation and, most often, judicial approval.
Most importantly, an application for guardianship must be filed with the appropriate district court in Nebraska. Although the applicant (or guardian petitioner) does not need to formally file the pleadings through an attorney, it is highly recommended. The services of an experienced Nebraska Guardianship attorney include working within the time limits established by Nebraska law, ensuring that the right forms are used and filed in the correct district court, serving the required parties that are necessary for the petition to be granted, and representing the petitioner at the hearing.
Submitting these several forms requires adherence to numerous statutory prerequisites and court rules. Failure to comply with these requirements can result in the delay of the guardianship appointment or even denial. Also, guardianship forms cannot be adapted to the factual scenario at hand. The Statutes specifically state what must be contained in the application. "Custody" must be requested, but "physical custody" is not a part of the process.
Just to further clarify, a guardian is the person or entity appointed by the court to be responsible for the care and control of a ward, effectively acting as a surrogate decision-maker. Although the petitioner is usually a family member with significant caregiving history, the court first has to establish that guardianship must be imposed on the adult. This means that the potential ward must be found incapacitated, and that he or she must consent to the guardianship or fail to properly object.
Depending on the ward’s assets, bond may have to be posted with the court. In Nebraska, bond is not required when the ward’s non-adaptable assets are less than $50,000. Bond may not be required if the guardianship comes into effect on or after November 1 of the year in which the ward turns 65 (i.e., for a child who turns 65 on February 14, bond would not be required for the full calendar year). If there is no bond, the person in charge of the trust will be required to file an annual "statement of account" so that the court is kept informed about the management of assets.
Once appointed, the guardian must serve and report to the court on an annual basis (on May 1 of each year), although the court may waive either the service or report requirements. If the ward moves out of state (but the guardianship has not been terminated) or the guardian, they must promptly notify the court regarding this change in circumstances.
Since guardianship and conservatorship fall under a single statute with different sections applicable to each, adequate legal assistance is vital to ensure that the correct process is followed.
Nebraska Guardianship Forms You’ll Need
Filing for guardianship in Nebraska takes several forms, both literally and figuratively. Two main forms are required to file a guardianship application: a Petition to Appoint a Guardian of an Incapacitated Person (NC 9:9) and a Confidential Information Form (NC 9:1). Additional forms that may be required include an Order Appointing Guardian of an Incapacitated Person (NC 9:10) and Acceptance of Appointment by Guardian of Incapacitated Persons (NC 9:12).
The Application for Guardianship (also called Petition for Guardianship) asks the Court to find the subject of your guardianship to be an incapacitated person, then appoint you or someone else as the guardian. The amendment asks the Court to modify or revoke an earlier guardianship order.
The Confidential Information Form provides information about the proposed guardian. Such information includes name, address, phone number, date of birth, Social Security number, and more .
Essential details concern the forms needed and where to fill them out.
You can find the Petition and Order forms at the Nebraska Supreme Court’s Self-Help Center. The forms are designed for standard guardianship cases. A third form, the Acceptance of Appointment, indicates acceptance of your appointment as guardian.
All three forms come from the Nebraska Supreme Court’s website. Alternatively, you can visit your local Clerk of Court office and ask for the forms. You should complete the forms with blue or black pen without pencil or any other color of ink. Use all capital letters for people’s names. The forms must be signed, but not notarized.
The payer ID number is the identity number you use when billing Medicare and Medicaid. If you need one, you can apply for a payer ID number from the NPI Registry Center online. If you are not authorized to bill either Medicare or Medicaid in your state, you should obtain the payer ID number from the Nebraska Medicaid Agency.
Submitting and Filing Guardianship Forms
Once the appropriate Nebraska guardianship forms have been filled out and are ready for submission, they must be filed in the county where the proposed ward resides. These forms will undergo a series of reviews as they make their way through the legal system, with clerks looking at the adequacy and accuracy of each submission. An initial step in the filing and reviewing process is to schedule a court date for the hearing on the matter. Typically, this step is made by the Clerk’s Office, which will then inform you of the date granted. While you cannot have a guaranteed expectation of the specific judge who might hear your matter, you can usually find out the name of the hearing officer assigned to your case. The assigned judge for the hearing may also investigate the proposed guardian and in some cases the proposed ward. The formal process generally takes several weeks, depending on the length of the judge’s calendar and the complexity of the case. It is advisable to file and submit the guardianship forms as early as possible. This allows for the review process to maintain its normal pace, but postponements could mean that hearings are delayed. If the proposed guardian has a potentially conflicted financial interest in the estate of the ward, such as a business relationship with the ward, or if issues of potential conflict arise at some point during the review process, it can delay matters. In order to make sure there are no delays in the filing and submission of the guardianship forms, make sure all information is accounted for on these documents, and verify that the information given is as detailed as possible. Keep in mind that all guardianship forms should be attached and ready to submit along with copies of any other necessary documentation. Missing documents can slow down the process and sometimes even lead to the necessity to restart.
What the Law Says: Consequences of Guardianship
Establishing a guardianship for an individual subject to the jurisdiction of the Nebraska probate court is a significant legal action that requires proper procedure and consideration not only by the parties, but the court as well. The laws regarding guardianships in Nebraska are governed under Nebraska Revised Statutes §30-2610 (2014). There are a number of legal considerations when establishing a guardianship and, as with any court matter, there are potential consequences if the proper procedures are not followed. The court must consider specific circumstances in needing to appoint a guardian for an individual, the current and potential future needs of the proposed ward, as well as the potential impact on the proposed guardian and the ward’s property . There are also legal requirements to be met by the court in establishing a guardianship.
266.01.
In examining and evaluating the issues to be addressed in establishing a guardianship, including Capacity and Property, the court will review the following:
In addition, a guardian does not assume liability for the acts of the ward, but upon acceptance of the guardian appointment, if the guardian acts negligently in their duties, they may be liable for any damages caused by the negligence. An appointed guardian may also be held civilly or criminally liable for failure to perform their duties or for an action that is beyond the scope of their authority. Neb. Rev. Stat. §30-2629 (2014).