Family Law Attorney

The information below is for education and marketing purposes only. In no way it is intended to provide legal advice or create a client-attorney relationship. Should you have a question regarding the content or your situation, please contact a lawyer.

 

Who Needs A Guardian?

• The Nebraska law says the court may appoint a guardian by clear and convincing evidence shown that the ward is incapacitated and that the guardianship appointment is necessary. In other words, the key elements for who needs guardianship are (1) the ward is incapacitated and (2) the appointment is necessary. It is hard to say exactly when someone (ward) needs a guardian. Ward is the person a guardian protects. A guardian is the individual approved by the court to make decisions on the ward’s behalf. Guardians can be people from the ward’s family, friends, social workers, lawyers, even government employees and others selected by the court. There can be many reasons for why someone needs a guardian. Some children are separated from their birth or adopted parents need a guardian to protect them and raise them. Some adults with mental or developmental illness need a guardian to help them with daily activities and decision making. Some disabled individuals need a guardian to apply for benefits and make medical decisions. Some parents may appoint stand-by guardians for their children in case something happens. Sadly, some elders are neglected by their adult children need a guardian to care for them. In cases when the ward has no family or friends willing to step up to become the guardian, court can appoint a public guardian at the government’s expense, similar to a public defender.

 

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What Is A Court Appointed Guardian?               

• Nebraska Revised Statute 30-2620 states that The court may appoint a guardian if it is satisfied by clear and convincing evidence that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as the least restrictive alternative available for providing continuing care or supervision of the person of the person alleged to be incapacitated.  Guardianship usually starts with a petition filed by an interested person. An interested person includes the disabled or incapacitated person’s children, spouse, relatives, friends, and people who have a legitimate interest in the incapacitated person’s well-being. There are some similarities between a guardian and a power of attorney or an attorney in fact. An attorney in fact is created when a Power of Attorney is executed. The principal creates the Power of Attorney to allow an agent to act on his/her behalf after/during certain triggering events. The process of creating a Power of Attorney usually does not involve the court. In comparison, guardianship is formal court process that requires petitions, hearings, presentation of evidence before a judge can make a decision. Guardianship is more powerful and intrusive than Power of Attorney. With more power comes more responsibilities. Guardians have a legal duty to act and fiduciary duties to take care of ward’s assets. When failure to act or failure to take reasonable effort to act, negligence, or intentional act to cause harm to the ward, court may hold guardians in contempt or certain criminal charges maybe instituted. Guardianship can also be intrusive. Guardians can determine the place where the ward lives whether it is a detention, commitment to a treatment facility or just where the ward’s apartment is. Often times, there are disagreements between the ward and guardian. If the court authorizes the guardian the power in certain areas, the guardian’s decisions can overwrite the ward’s choices in those areas. That does not mean a guardian should not listen or defer his decision to the ward.

 

What Do Guardians Do?

• Judges will spell out what duties the guardian has. There are often mentioned in the judge signed Letters of Appointment of Guardianship. The specific duties usually are dependent on the incapacitated person’s needs and circumstances. Generally, a guardian may decide whether the ward lives, consent to certain treatments for the ward, make decisions as to the ward’s care, comfort, education, and training, manage the ward’s assets, institute law suits on behalf of the ward, apply for and receive benefits for the ward. Because guardianship can be intrusive to the person, judges usually appoints a limited guardianship. A full guardianship request must be shown by clear and convincing evidence that such full guardianship is necessary and the least restrictive alterative. Limited guardians only have responsibilities and authorities to make decisions for and on behalf of the incapacitated person in the areas specified by the judge. Guardians are expected to respect and listen to the ward. The decisions made before the ward’s incapacity are to be respected. For example, before John was injured in a car accident, he had executed a will mentioned whether he wants resuscitation and where he wants to be treated for sickness. His decisions made before the car accident must be followed.

 

How To Become A Guardian?

• Depends on the ward’s age, the court may require a showing by clear and convincing evidence of incapacity and necessity. If the ward is a minor, the requirement of incapacity is not required. Guardians are required to pass a background check including, credit history, sex offender registry, criminal history, and child/adult abuse and neglect registry. The results of these reports must be submitted at least 10 days before the hearing for the guardianship appointment. Once an Order for the guardianship appointment is signed by a judge. The Guardian must submit (1) acceptance, (2) general information (3) address information, (4) personal and financial information, (5) inventory and affidavit of due diligence, (6) acknowledgement of financial information, (7) proof of restricted account, if applicable, and (8) bond, if required. These forms can be obtained from the Nebraska Office of Public Guardian, on the Nebraska Supreme Court website, and some local courthouses also have these forms.