As your life changes, so can the needs of your children and family members. With these changes may come the need for a guardianship. A guardian is someone appointed by the court to care for a ward. If the ward is a minor (under 18 years old) then they are a minor ward.
Jump ahead to these sections:
- What Types of Guardianships Exist in Nebraska?
- Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Nebraska?
- What Forms Do You Need to File for Guardianship in Nebraska?
- How Do You File for Guardianship in Nebraska?
- How Do You Assign a Guardian for a Minor Child in Nebraska?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
- Frequently Asked Questions: Guardianship in Nebraska
If you have young children, and you have begun your end-of-life planning, then you may be wondering how to choose a guardian. If you have older family members, then you may be wondering if a guardianship is necessary.
As you answer the above questions, it is important to understand how guardianship works. If you live in Nebraska, then this article is for you. Here we will discuss how guardianship works in Nebraska for children and families.
What Types of Guardianships Exist in Nebraska?
As we discuss guardianships keep in mind that there are different types of guardianships depending on the circumstances. In Nebraska, the different types of guardianships include the following:
- Adult guardianship
- Minor guardianship
- Temporary guardianship
- Permanent guardianship
- Limited guardianship
- Full guardianship
- Standby guardianship
- Testamentary guardianship
The age of the ward determines whether the guardianship is an adult guardianship or a minor guardianship. The guardianship will be temporary or permanent depending on its duration.
The extent of incapacitation determines whether the guardianship is a limited guardianship or a full guardianship.
We will discuss the different types of guardianship in the following sections. If you have questions about the different types of guardianships, consult with a guardianship attorney licensed in your state. They can answer your questions and help you with the guardianship process if necessary.
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Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Nebraska?
There are no default guardians in Nebraska. However, there are natural guardians. In Nebraska, natural guardians are a minor child’s father and mother.
In Nebraska, there is also a priority of appointment for selecting a guardian. This means that the court may give a certain person preference when appointing a guardian. So, while the person may not be a default guardian, their relationship to the proposed ward may give them priority in selection. The priority of appointment is different depending on whether the proposed ward is a minor or an adult.
What Forms Do You Need to File for Guardianship in Nebraska?
The exact forms you will need to file for guardianship in Nebraska will vary depending on your unique circumstances. Many of the forms that you will need to file are available on the Nebraska Supreme Court website. If you have questions about what forms you need to file you should consult with a guardianship attorney licensed to practice in Nebraska.
The following are some of the forms that you may need to file for guardianship in Nebraska:
- Petition for guardianship
- Criminal background check
- Abuse and neglect registry check
- Sex offender registry check
- Credit report
- Proof of restricted account (for restricted accounts)
- Personal and financial information about ward (for restricted accounts)
- Acceptance of appointment
- General information about guardian
- Address information regarding parties
- Personal and financial information about ward
- Inventory and affidavit of due diligence
- Financial institution receipt of orders
- Certificate of completion of training
- Financial institution receipt of letters
- Updated financial information
Once appointed, guardians must file annual reports. These reports are different based on whether the ward is an adult or a minor child.
How Do You File for Guardianship in Nebraska?
The process for filing for guardianship in Nebraska is fairly similar for both guardianship of a minor child and guardianship of an adult. The legal process for temporary guardianship requires less steps.
To start the process, the person seeking guardianship would file the petition with the appropriate court. The appropriate court is either the court in the county where the ward is located currently or where the ward is a resident.
The person filing for guardianship (the petitioner) must provide notice to all interested parties, including the proposed ward. The petitioner must also pay all necessary filing fees as well as the other costs associated with filing.
During the guardianship process, the petitioner will need to complete a criminal background check, an abuse and neglect registry check, a sex offender registry check, and a credit report. In pursuing a guardianship for an adult, the petitioner will also need to establish that the adult is incapacitated. Oftentimes this is done via an affidavit from the proposed ward’s physician or medical records.
There are deadlines for when the above forms must be filed with the court. If you are unsure of filing deadlines, you should check with your court or an attorney.
How Do You Assign a Guardian for a Minor Child in Nebraska?
In most situations, a guardian is appointed by the court. However, in some situations it is possible to assign a guardian. A testamentary guardian is a guardian who is assigned in a person’s last will and testament. This often occurs with minor children, however it is also possible for incapacitated adults.
How Guardianship Works for Minor Children
A minor guardianship is a guardianship based on the ward’s age. In Nebraska, a minor child is an unmarried person under 19 years old. A guardian of a minor has all the same responsibilities as the natural parents. Except, the guardian is not financially responsible for the ward and is not liable to third parties for the actions of the ward.
A guardianship of a minor child ends by court order or upon the minor’s:
- Attainment of majority (turning 19)
A temporary guardianship is, as its name suggests, a guardianship for a short period of time. Temporary guardian may be appointed in an emergency situation. In those instances, the process for appointing a temporary guardian may be expedited.
Temporary guardians do not have the same powers and responsibilities as permanent guardians. They are restricted to those powers necessary to address the immediate situation. Temporary guardianships are for short durations and generally cannot last longer than 90 days.
A permanent guardianship has all the guardianship powers and responsibilities, unless limited as discussed below. A permanent guardianship ends in those ways discussed above.
A limited guardianship is any guardianship that is not a full guardianship. Under a limited guardianship, the court only grants the guardian specific powers.
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A guardian has many powers and responsibilities. If these powers and responsibilities are not limited by court order, then they are all of those established by Nebraska law. Under a full guardianship, the guardian is empowered to do many things including “facilitate the ward's education, social, or other activities and to authorize medical or other professional care, treatment, or advice.”
The court may appoint a standby guardian “for a minor whose parent is chronically ill or near death.” The standby guardian’s authority only takes effect if the minor is left without a remaining parent and upon either of the following:
- The parent’s death
- The parent’s mental incapacity
- The physical debilitation and consent of the parent
We discussed testamentary guardianship in an earlier section. A testamentary guardian is a guardian appointed by will. If the minor is 14 years of age or older, they may object to the appointment of the testamentary guardian.
How Guardianship Works for Older Adults
Age really is just a number when it comes to guardianship. Just because an adult is older, does not automatically mean that a guardianship is necessary. In order for a guardian to be appointed for an adult (regardless of age) the adult must be incapacitated.
In Nebraska, incapacitated person means anyone who is unable to make decisions for themselves, due to either mental or physical limitations. As with guardianship for minor children, there are different types of guardianship available for incapacitated adults.
A temporary guardian may be appointed for an alleged incapacitated person if the person doesn’t have a guardian and an emergency exists. As discussed in the previous section, the temporary guardian has limited powers and the guardianship is for a limited period of time.
A permanent guardianship lasts for a long period of time. It may last until the death of the ward or may also end when the ward is no longer incapacitated.
In Nebraska, all guardianships must be limited guardianships “unless the court finds by clear and convincing evidence that a full guardianship is necessary.” In a limited guardianship the court will specify the authorities and responsibilities of the guardian and the ward.
An example of a limited guardianship can be seen where the ward can handle their finances and day to day living but needs help making medical decisions.
A full guardianship is the most restrictive type of guardianship. It grants the guardian all powers and rights under the law.
The parent or spouse of an incapacitated person may appoint a guardian of the incapacitated person by will. The spouse’s appointment has priority over the parent’s appointment.
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
If a person is an adult, they generally have all the rights and responsibilities of an adult, even if they have developmental disabilities or special needs. As discussed in the previous section, in order for a guardian to be appointed for an adult, the adult must be incapacitated. Guardianship works the same for adults regardless of age, developmental disability, or special needs.
Frequently Asked Questions: Guardianship in Nebraska
It is normal to have questions when considering guardianship. Below we will answer frequently asked questions about guardianship in Nebraska to help you with your guardianship journey. If you have additional questions, you should check out our other resources or contact an experienced guardianship attorney.
How long is temporary guardianship in Nebraska?
In Nebraska, a temporary guardian is appointed for a specified period not to exceed 90 days. The court may extend the temporary guardianship for an additional 90 days for good cause.
What’s the difference between guardianship, conservatorship, and custody in Nebraska?
A guardian and a conservator are both appointed by the court. The difference between the two is their responsibilities. A conservator is appointed to make financial decisions for the protected person (the ward).
A guardian may make decisions about the ward’s medical care, education, place of residence, and other matters. In Nebraska, “a guardian has the power over finances unless a conservator has been appointed.” If both a guardian and conservator are appointed, the two must work together.
Custody refers to the relationship between parents and their children. It includes the parents’ right to make important decisions about the child’s upbringing as well as where they reside.
There are two types of custody: legal custody and physical custody. Legal custody means the authority to make “fundamental decisions” about the child’s welfare, including education and health. Physical custody refers to where the child resides and “the exertion of continuous parenting time for significant periods of time.
Parents are generally entitled to the right to custody and control of their minor children. A guardian may be appointed for a minor child if the parent’s custodial rights are terminated or suspended indefinitely.
Can you get guardianship without going to court in Nebraska?
A guardian is appointed by the court. This means that you cannot get guardianship without going to court in Nebraska. Even a testamentary guardian has to file their acceptance with the appropriate court.
Do You Have a Need for Guardianship?
As your life changes, so can your needs. During each stage of your life, you should consider whether a guardianship is right for your needs or the needs of a loved one.
Now that you know more about guardianship for children and families in Nebraska, you can consider how guardianship fits into your current stage of life.