Guardianship and Conservatorship Law in Nebraska
When is a guardianship or conservatorship appropriate? In general, a court will make a guardianship appointment when an individual does not have the ability to care for themselves or suffers from some kind of disability, whether a medically-defined one or simple the person’s age, like a minor child. To decide what steps to take, you need an skillful attorney to guide you through the guardianship and/or conservatorship process of the probate court. Jeff Heineman is a knowledgeable and experienced Omaha attorney with 30 years of experience. He is willing to provide answers to the important questions you have.
In general, the Court will appoint a guardian to either care for a child(ren) and/or the child(ren)’s assets when that child(ren) do not have a parent, or do not have a parent considered capable to care for such matters. In my experience, the courts look to grandparents and other close relatives to become the guardian and possibly the conservator. Please remember, you can designate a guardian for your child(ren) in your will. The Court will give that choice first consideration. However, the Court makes the ultimate decision.
If the children have substantial assets (usually more than $5,000) from inheritance, working (i.e., athletics, acting, etc..), gifts or some other source, the guardian will likely need the Court’s permission to handle such financial matters. If granted, the guardian will have similar bookkeeping and reporting requirements that a conservator would have.
Guardians of an adult, often an elderly parent, or that person’s spouse, occurs when a person can no longer handle their day-to-day needs. It is a formal court proceeding wherein one person is authorized to manage the affairs of another adult who is seriously incapacitated. The powers granted in a Guardianship order vary with each situation. In the cases involving a severely disabled person, the Court may empower the guardian to make all decisions of a disabled person, including but not limited to all health-care decisions, financial decisions, living arrangements or any other decision which would normally be made by an adult. The person protected by a guardianship is knows as the “ward.”
In some states, the control over financial matters requires that a Conservatorship be established. Generally, a conservatorship is necessary for people unable to make their own financial, and sometimes healthcare, decisions. People that have a debilitating illness, have lost their ability to make rational decisions, or are easily influenced by others are common examples of individuals requiring a conservatorship.
A Conservatorship, and some guardianships, can involve a fair amount of time and expense. Court appearances by the conservator, annual accounting requirements, and sometimes the need for the conservator to obtain a bond make them very unappealing to many. Also, in my experience, you sometimes have relatives wanting to butt-in, but only for the wrong reasons. Finally, certain financial and medical decisions may require the court’s permission. These requirements are either in the Court’s order granting the conservatorship or in the state statutes.
Finally, any individual with concerns of who may control their property or may make decisions for them need to consider obtaining a Durable Power of Attorney, Durable Power of Attorney for Health Care, LIving Will, or other an advance health care directive to may eliminate the need for a guardian or conservator. However, like any legal document, it should be drafted carefully. Most important, it must be done when the person is capable of making rational decisions.