Understanding a Guardianship/Conservatorship

The recent news of Britney Spears’ ongoing court battle has made “guardianship” and “conservatorship” household terms. Understanding the basics of protective proceedings can give some context to this timely issue. In Nebraska, the legal system offers a proceeding for interested persons to seek guardianship and/or conservatorship over an incapacitated person or minor child. In enacting the guardianship/conservatorship statutes, the Nebraska legislature recognizes the need for intervention in the lives of certain persons who are minors or are impaired by reason of disability, whether it be mental deficiency, physical illness or disability, or chronic substance abuse, to a name a few, with a focus on granting limited powers when appropriate. To be clear, in appointing a guardian/conservator, the court usurps an impaired person’s personal and civil rights by granting decision-making powers over the protected person/ward—it is not a proceeding to be taken lightly.

Generally speaking, in a guardianship or conservatorship proceeding, an interested person moves the court for a finding that the proposed ward/protected person is incapacitated and/or in need of protection. Upon notice to interested parties and a hearing before the court, the judge makes findings regarding capacity and/or need for protection and can then appoint a guardian and conservator, when appropriate. The judge also has the ability to grant limited powers to the appointed person. The appointed person then becomes the decisionmaker for the ward/protected person within the limits set by the court. Guardianships/conservatorships are typically filed in the county court of residence of the ward/protected person. Sometimes they are established in juvenile court in the case of minors.

In order to become a guardian or conservator, the appointed person must undergo several background checks and take a training class. They must also provide a credit check to the court. Following appointment, the guardian/conservator must file an annual report to the court regarding the general health, condition, and financial standing of the ward/protected person. With this report, an annual accounting is provided to the court of all funds received and spent from the ward’s/protected person’s assets.

Is there a way to avoid guardianship/conservatorship? For adults who have capacity, a power of attorney can be executed which appoints an agent to take over in the event of their incapacity. In many cases, this forgoes the need for a guardianship/conservatorship proceeding. For minors whose parents are deceased or unable to care for them, typically a guardianship will need to be established to appoint a decisionmaker for them until they turn 19. Assuming no other disabilities, at the age of 19, the guardianship can be terminated.

Each protective proceeding is different—a qualified attorney can answer your questions regarding guardianships, conservatorships, and what is most appropriate for your unique situation.

Guardian: any person appointed to protect a ward

Conservator: any person appointed to protect a protected person

Ward: a person for whom a guardian has been appointed; a minor ward is a minor for whom a guardian has been appointed solely because of minority

Protected Person: a minor or other person for whom a conservator has been appointed or other protective order has been made

Interested Person: children; spouse; heirs of the ward or person alleged to be incapacitated if he/she had died or did in fact die without a will; devisees under the deceased ward’s Will; any trustee or personal representative of the ward’s or incapacitated person’s trust or estate. The meaning of interested person may vary from time to time and must be determined according to the purpose and facts of the proceeding.

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