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GUARDING AGAINST GUARDIANSHIP AND CONSERVATORSHIP
Mildred Smith is an 84-year-old retired school teacher. Her husband, John, passed away five years ago. She and her husband have no children and her closest relative is a niece who lives 250 miles away. She has been living off of social security, teachers' retirement, and a small "nest egg" she and her husband had accumulated over the years. One day, Mildred's niece calls Drew Barrow, Mildred's family attorney, and indicates that Mildred has been wandering the streets of the city in the dead of winter with very little clothing on. Mildred's niece further states that Mildred has spent the majority of her savings on a lightning rod which was placed atop her house. Mr. Barrow contacts Mildred and suggests that she talk to her family physician. Mildred relays to him that doctors are devils and medicine is poison. When questioned about the lightning rod, Mildred states that she needs the lightning rod to protect her from evil spirits and visitors from other planets. Mildred's attorney also determines that Mildred has not previously executed a durable power of attorney.
This scenario may seem a little outlandish, but factual accounts very similar to this one have been the subject of Guardianship and Conservatorship proceedings throughout the State. There are ways to plan for this scenario before it happens by use of a financial power of attorney, power of attorney for health care, or living trust. But in many instances, the person who needs the help does not realize it, is a minor, or is in such a state that they are unable to make any rational decisions concerning themselves or their property and no previous arrangements have been made to take care of this situation. It is at this vulnerable point, once all other options have been exhausted, that court intervention may be necessary and a guardian or conservator may be appointed.
A guardianship is a judicially created relationship in which one person, called a guardian, is appointed by the court to act on behalf of another, called the ward, whom the law regards as incapable of making decisions concerning his or her personal affairs. This may be decisions that the average person takes for granted like where he or she is to live and what medical treatment is necessary.
A conservatorship is a judicially created relationship in which the court appoints a person, called a conservator, to act on behalf of another individual, called a protected person, with respect to that person's financial decisions and property when the protected person is unable to do so.
Guardianship and conservatorship law in Nebraska has dramatically changed since the passage of LB 782 in 1993 and LB 466 in 1997. Most of the changes were designed to protect the rights of the person for whom the guardianship or conservatorship is sought. A practitioner must always keep in mind that a guardianship or a conservatorship has a dramatic impact upon an individual's life. Protective intervention by family members or governmental entities may protect an estate at the expense of a person's civil and human rights.
Nebraska law dealing with guardianships and conservatorships is contained within Article 26 of the Nebraska Probate Code (Nebraska Revised Statutes §30-2601 through §30-2661). The Nebraska Probate Code was adopted and became effective January 1, 1977, and also applies to all guardianships or conservatorships established prior to January 1, 1977.
Article 26 of the Nebraska Probate Code addresses three broad areas; namely:
1. Guardianship procedures relating to both minors and incapacitated persons other than minors;
2. Protective proceedings, also known as a conservatorship for the management of property of both minors and persons under disability;
3. Procedures available to eliminate the necessity for guardianship or conservatorship proceedings in some limited circumstances.
COURT PROCEDURE FOR INSTITUTING GUARDIANSHIP
OR CONSERVATORSHIP PROCEEDINGS
A guardianship and conservatorship proceeding is commenced by filing a petition with the county court where the ward or protected person resides. The ward, the minor in the case of a guardianship proceeding involving a minor, or "any person interested in their welfare" may file an action in county court to have a guardianship established. Neb. Rev. Stat. § 30-2619 (Supp. 1997). In a conservatorship proceeding, the person to be protected or "any person interested in his or estate, property affairs, or welfare" may file an action to have a conservatorship established. Neb. Rev. Stat. § 30-2633 (Supp. 1997). You will note that under Nebraska law, not only may family members commence a guardianship or conservatorship, but arguably so can neighbors, government entities, or banking institutions.
If an emergency exists, the court may appoint a temporary guardian or a temporary conservator to address the emergency. The temporary guardian or temporary conservator may be appointed ex parte (without a hearing), however, an expedited hearing may be held if requested by the person alleged to be incapacitated or by any interested party. The expedited hearing should be scheduled at least ten days after such request. Notice of the expedited hearing should be served personally upon the ward or protected person and his or her spouse and parents if they can be found within the state.
At the expedited hearing, the Court will determine if the temporary guardianship or temporary conservatorship should continue to address the emergency.
A temporary guardian's or conservator's authority will terminate at the end of ninety days after their appointment unless the court terminates it beforehand. For good cause shown, the Court can continue the temporary guardianship or conservatorship for an additional ninety days.
Some of the most common emergencies that may require the appointment of a temporary guardian or conservator include the following:
1. An individual is suffering from a serious medical condition and irrationally refuses treatment;
2. The individual is suffering from serious psychosis and is in immediate danger of harming him or herself or others; or
3. In the case of an emergency temporary conservatorship, the individual is, on a daily basis, diverting funds to third-party scam operations, despite intervention from family members and law enforcement.
One should keep in mind that the foregoing examples are all cases where no previous arrangements have been made, such as a power of attorney or trust.
Sometime after the temporary hearing, the court will next conduct a hearing to determine if a permanent guardianship or conservatorship is needed. The court must find that the guardianship or conservatorship is the least restrictive alternative available for the ward or protected person. If the court determines that a less restrictive alternative is available (such as a durable power of attorney or trust), the court will not appoint a guardian or conservator and may dismiss the case.
If a guardianship or conservatorship is found to be needed by the court (must be clear and convincing evidence), the court may appoint a guardian or conservator. If the proposed guardian or conservator accepts the court's appointment and files a bond (if necessary), the court will issue a document called "Letters of Guardianship or Conservatorship," which describes a guardian's or conservator's specific authority. The letters are also proof of such authority to third parties.
One should always keep in mind that by petitioning the court to set up a guardianship or conservatorship you are asking the court to greatly restrict that person's individual rights. For example a person has the right to refuse medical treatment as long as he or she understands the implications and alternatives. A person also has the absolute right to disinherit all, or selected family members and spend their property as they wish, as long as they are competent to do so.
In addition, once a guardianship or conservatorship proceeding is filed with the Court, the ward and/or protected person has the following rights:
1. The right to request the appointment of an attorney;
2. The right to present evidence in his or her own behalf;
3. The right to request that the power of a guardian, if appointed, be limited by the Court;
4. The right to be notified regarding how to contact the temporary guardian or conservator if one is appointed by the Court;
5. The right to compel attendance of witnesses;
6. The right to cross-examine witnesses, including the court appointed physician;
7. The right to appeal any final order; and
8. The right to request a hearing closed to the public.
Neb. Rev. Stat. § 30-2625 and § 30-2634 (Reissue 1997).
GUARDIANSHIP AND CONSERVATORSHIP OF MINORS AND ALTERNATIVES
Not all guardianships are over adults. A guardian may also be appointed for a minor. Under the Nebraska Probate Code, a minor is generally an individual under 19 years of age. The parents of the minor are considered as the minor's "natural guardians" and generally speaking, no court proceeding is necessary. A court appointed guardian over a minor may be necessary when the parents die or when both parents have their rights terminated through a juvenile proceeding.
If both parents pass away while the child is a minor, they may mention in their will who they want to be appointed as guardian or conservator of their minor child or children. The court will generally honor this request and appoint that person as guardian or conservator if they are willing to accept such appointment.
The powers of a guardian of a minor are generally the powers and responsibilities of a parent. The only main difference is the guardian is not personally responsible for acts of the minor. This includes the power to take reasonable care of minor's personal effects, receive money or property payable to the minor, authorize medical or other professional care, make decisions concerning the minor's education, social or other activities, and consent to the marriage or adoption of the minor.
The duties of a guardian of a minor include the duty to report on the condition of the minor not later than 30 days after the anniversary of his or her appointment and every year thereafter. A guardian of a minor is also prevented from paying him or herself compensation without a court order.
The guardianship of a minor terminates upon the death, resignation, or removal of the guardian, the death or adoption of the ward, or when the ward attains the age of majority or is otherwise emancipated. In addition, upon termination of the guardianship, the guardian of the minor must file a final report with the court and settle all accounts with the ward by delivering any remaining funds or property to the ward.
The Nebraska Probate Code also lists some alternatives to court intervention when dealing with a minor. Under Nebraska Revised Statute § 30-2603 (Reissue 1995), a person obligated to pay money or deliver personal property to a minor, in amounts not exceeding $10,000.00 per year, may do so without setting up a conservatorship over the minor. They are required to deliver it directly to a person having the care and custody of the minor, the natural guardian of the minor, or a financial institution in the minor's name.
The person receiving the money is obligated by Nebraska law to apply the money to the support and education of the minor and give the balance remaining to the minor once he or she reaches the age of majority or is emancipated.
Under Nebraska law, a conservator may be appointed for a minor if the minor owns money or property which requires management (in excess of $10,000.00 per year) or when funds are needed for the minor's support and education, and a conservator is needed to obtain such funds from a third party.
Another alternative to court intervention under the Nebraska Probate code is Nebraska Revised Statutes § 30-2604. Under this statute, a parent or guardian of a minor, or a parent or a guardian of an incapacitated person may delegate to another person his or her power dealing with the care, custody, or property of the minor or incapacitated person. This delegation may be accomplished by use of a power of attorney and the agent's authority may not exceed six months.
GUARDIANSHIP OF AN INCAPACITATED PERSON
Under Nebraska law, a guardian may be appointed over an incapacitated person. An incapacitated person is any adult who is impaired by reason of mental illness, mental deficiency, physical illness, disability, chronic use of drugs, chronic intoxication, or other cause to the extent that the person lacks sufficient understanding or capacity to make responsible decisions concerning his or her person.
When considering who to appoint as guardian, the court will first look to the following people in the order listed below:
1. A person nominated or acting under a previous power of attorney;
2. The spouse of the ward;
3. An adult child of the ward;
4. A parent of the ward, or someone nominated in a parent's will;
5. Any relative of the ward that the ward was living with six months prior to the filing of the petition; or
6. A person nominated by the person who is caring for him or her or paying benefits to him or her.
If none of the above-mentioned individuals are available or if the court determines none of them are fit to be guardian, the court may appoint any competent person or institution.
The court may appoint a guardian ad litem or attorney to advocate for the best interests of the person alleged to be incapacitated. The court may also appoint a physician to examine the alleged incapacitated person and file a report with the court. In addition, the court may appoint a visitor and direct such visitor to conduct an evaluation of the allegations of incapacity and interview the person seeking appointment as guardian. The visitor should be trained in law, nursing, social work, mental health, mental retardation, gerontology, or developmental disabilities. They should also be an officer, employee, or special appointee of the court with no personal interest in the proceedings. Any owner of a care facility in which the ward is being housed may not be appointed as a visitor. The court will appoint the visitor who has the expertise to most appropriately evaluate the needs of the person who is allegedly incapacitated.
A court appointed guardian for an adult has only those powers designated by the court in the letters of guardianship. One of these powers may include the power to decide where the ward is to live after the guardian makes every reasonable effort to insure that the placement is the least restrictive alternative. The guardian may also have the power to make arrangements for the care, comfort, maintenance, training and education of the ward; take responsible care of the ward's clothing, furniture, vehicles, and other personal effects; and give consent and approval for medical or other professional care, counseling, treatment or service. If no conservator has been appointed over the ward, the guardian may institute proceedings to enforce support rights of the ward (including alimony or child support), receive money and personal property for the ward, and may consent to the release of financial, medical, and other confidential records. If the guardian receives money on behalf of the ward, the guardian only has the authority to apply such money to the support, care, and education of the ward.
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