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).

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