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.

[ Previous Page ]