30-2601. Definitions and use of terms.

Unless otherwise apparent from the context, in the Nebraska Probate Code:

(1) Incapacitated person means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that the person lacks sufficient understanding or capacity to make or communicate responsible decisions concerning himself or herself;

(2) A protective proceeding is a proceeding under the provisions of section 30-2630 to determine that a person cannot effectively manage or apply his or her estate to necessary ends, either because the person lacks the ability or is otherwise inconvenienced, or because the person is a minor, and to secure administration of the person's estate by a conservator or other appropriate relief;

(3) A protected person is a minor or other person for whom a conservator has been appointed or other protective order has been made;

(4) A ward is 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;

(5) Full guardianship means the guardian has been granted all powers which may be conferred upon a guardian by law;

(6) Guardian means any person appointed to protect a ward and may include the Public Guardian;

(7) Public Guardian is as defined in section 30-4103;

(8) Limited guardianship means any guardianship which is not a full guardianship;

(9) Conservator means any person appointed to protect a protected person and may include the Public Guardian;

(10) For purposes of article 26 of the Nebraska Probate Code, interested person means children, spouses, those persons who would be the heirs if the ward or person alleged to be incapacitated died without leaving a valid will who are adults and any trustee of any trust executed by the ward or person alleged to be incapacitated. After the death of a ward, interested person also includes the personal representative of a deceased ward's estate, the deceased ward's heirs in an intestate estate, and the deceased ward's devisees in a testate estate. The meaning of interested person as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding. If there are no persons identified as interested persons above, then interested person shall also include any person or entity named as a devisee in the most recently executed will of the ward or person alleged to be incapacitated; and

(11) Guardian ad litem means an attorney appointed by the court in a guardianship, conservatorship, or other protective proceeding pursuant to sections 30-4201 to 30-4210 to represent the interests of a person who has been alleged to be incapacitated, ward, person to be protected, or minor.

Source:Laws 1974, LB 354, § 219, UPC § 5-101; Laws 1997, LB 466, § 5; Laws 2011, LB157, § 32; Laws 2013, LB172, § 1; Laws 2014, LB920, § 20; Laws 2016, LB934, § 25.

Cross References

30-2601.01. Guardians and conservators; training curricula.

The Public Guardian shall approve training curricula for persons appointed as guardians and conservators. Such training curricula shall include, but not be limited to:

(1) The rights of wards under sections 30-2601 to 30-2661 and the Public Guardianship Act specifically and under the laws of the United States generally;

(2) The duties and responsibilities of guardians;

(3) Reporting requirements;

(4) Least restrictive options in the areas of housing, medical care, and psychiatric care; and

(5) Resources to assist guardians in fulfilling their duties.

Source:Laws 1993, LB 782, § 4; Laws 2014, LB920, § 21.

Cross References

30-2601.02. Legislative intent.

The Legislature recognizes the need for providing mechanisms for intervening in the lives of certain persons who are impaired by reason of disability. It is the intent of the Legislature to authorize the use of guardianships and conservatorships for such intervention. It is also the intent of the Legislature to encourage the least restrictive alternative possible on the impaired person's exercise of personal and civil rights consistent with the impaired person's need for services by encouraging judges to utilize limited guardianships if appropriate.

Source:Laws 1997, LB 466, § 4.
30-2602. Jurisdiction of subject matter; consolidation of proceedings.

(a) The court has jurisdiction over protective proceedings and guardianship proceedings.

(b) When both guardianship and protective proceedings as to the same person are commenced or pending in the same court, the proceedings may be consolidated.

Source:Laws 1974, LB 354, § 220, UPC § 5-102.
30-2602.01. Ex parte orders; authorized; violation; penalty.

During the pendency of any proceeding under sections 30-2601 to 30-2661 after a guardian or conservator is appointed, upon application by any interested person and if the accompanying affidavit of such person or his or her agent shows to the court that the ward's or protected person's safety, health, or financial welfare is at issue, the court may issue ex parte orders to address the situation. Ex parte orders issued under this section shall remain in full force and effect for no more than ten days or until a hearing is held thereon, whichever is earlier. Anyone who violates such order after service shall be guilty of a Class II misdemeanor. Any interested person that submits an affidavit under this section in bad faith, or submits an affidavit under this section that lacks a factual basis as determined by the court, shall be ordered to pay the opposing party reasonable attorney's fees and costs.

Source:Laws 2011, LB157, § 33.
30-2602.02. Guardian or conservator; national criminal history record check; report; waiver by court.

(1) A person, except for a financial institution as that term is defined in section 8-101.03 or its officers, directors, employees, or agents or a trust company, who has been nominated for appointment as a guardian or conservator shall obtain a national criminal history record check through a process approved by the State Court Administrator and a report of the results and file such report with the court at least ten days prior to the appointment hearing date, unless waived or modified by the court (a) for good cause shown by affidavit filed simultaneously with the petition for appointment or (b) in the event the protected person requests an expedited hearing under section 30-2630.01.

(2) An order appointing a guardian or conservator shall not be signed by the judge until such report has been filed with the court and reviewed by the judge. Such report, or the lack thereof, shall be certified either by affidavit or by obtaining a certified copy of the report. No report or national criminal history record check shall be required by the court upon the application of a petitioner for an emergency temporary guardianship or emergency temporary conservatorship. The court may waive the requirements of this section for good cause shown.

Source:Laws 2011, LB157, § 34; Laws 2017, LB140, § 151.
30-2603. Payment or delivery to minor.

Any person under a duty to pay or deliver money or personal property to a minor may perform this duty, in amounts not exceeding twenty-five thousand dollars per annum, by paying or delivering the money or property to:

(1) The minor, if he or she has attained the age of eighteen years or is married;

(2) Any person having the care and custody of the minor with whom the minor resides;

(3) A guardian of the minor; or

(4) A financial institution incident to a deposit in a federally insured savings account in the sole name of the minor and giving notice of the deposit to the minor.

This section does not apply if the person making payment or delivery has actual knowledge that a conservator has been appointed or proceedings for appointment of a conservator of the estate of the minor are pending. The persons, other than the minor or any financial institution under subdivision (4) of this section, receiving money or property for a minor are obligated to apply the money to the support and education of the minor but may not pay themselves except by way of reimbursement for out-of-pocket expenses for goods and services necessary for the minor's support. Any excess sums shall be preserved for future support of the minor, and any balance not so used and any property received for the minor must be turned over to the minor when he or she attains majority. Persons who pay or deliver in accordance with provisions of this section are not responsible for the proper application thereof.

Source:Laws 1974, LB 354, § 221, UPC § 5-103; Laws 1992, LB 1000, § 1; Laws 2006, LB 1115, § 27.
30-2604. Delegation of powers by parent or guardian.

A parent or a guardian of a minor or incapacitated person, by a properly executed power of attorney, may delegate to another person, for a period not exceeding six months, any of his or her powers regarding care, custody, or property of the minor child or ward, except his or her power to consent to marriage or adoption of a minor ward. A parent or guardian of a minor who is at least eighteen years of age and who is not a ward of the state, by a properly executed power of attorney, may delegate to such minor, for a period not exceeding one year, the parent's or guardian's power to consent to such minor's own health care and medical treatment.

Source:Laws 1974, LB 354, § 222, UPC § 5-104; Laws 2010, LB226, § 1.
30-2605. Status of guardian of minor; general.

A person becomes a guardian of a minor by acceptance of a testamentary appointment or upon appointment by the court. The guardianship status continues until terminated, without regard to the location from time to time of the guardian and minor ward.

Source:Laws 1974, LB 354, § 223, UPC § 5-201.

Cross References

30-2606. Testamentary appointment of guardian of minor; notice.

The parent of a minor may appoint by will a guardian of an unmarried minor. Subject to the right of the minor under section 30-2607, a testamentary appointment becomes effective upon filing the guardian's acceptance in the court in which the will is probated if, before acceptance, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority. This state recognizes a testamentary appointment effected by filing the guardian's acceptance under a will probated in another state which is the testator's domicile. Upon acceptance of appointment, written notice of acceptance must be given by the guardian to the minor and to the person having his care, or to his nearest adult relation.

Source:Laws 1974, LB 354, § 224, UPC § 5-202.
30-2607. Objection by minor of fourteen or older to testamentary appointment.

A minor of fourteen or more years may prevent an appointment of his testamentary guardian from becoming effective, or may cause a previously accepted appointment to terminate, by filing with the court in which the will is probated a written objection to the appointment before it is accepted or within thirty days after notice of its acceptance. An objection may be withdrawn. An objection does not preclude appointment by the court in a proper proceeding of the testamentary nominee, or any other suitable person.

Source:Laws 1974, LB 354, § 225, UPC § 5-203.
30-2608. Natural guardians; court appointment of guardian of minor; standby guardian; conditions for appointment; child born out of wedlock; additional considerations; filings.

(a) The father and mother are the natural guardians of their minor children and are duly entitled to their custody and to direct their education, being themselves competent to transact their own business and not otherwise unsuitable. If either dies or is disqualified for acting, or has abandoned his or her family, the guardianship devolves upon the other except as otherwise provided in this section.

(b) In the appointment of a parent as a guardian when the other parent has died and the child was born out of wedlock, the court shall consider the wishes of the deceased parent as expressed in a valid will executed by the deceased parent. If in such valid will the deceased parent designates someone other than the other natural parent as guardian for the minor children, the court shall take into consideration the designation by the deceased parent. In determining whether or not the natural parent should be given priority in awarding custody, the court shall also consider the natural parent's acknowledgment of paternity, payment of child support, and whether the natural parent is a fit, proper, and suitable custodial parent for the child.

(c) The court may appoint a standby guardian for a minor whose parent is chronically ill or near death. The appointment of a guardian under this subsection does not suspend or terminate the parent's parental rights of custody to the minor. The standby guardian's authority would take effect, if the minor is left without a remaining parent, upon (1) the death of the parent, (2) the mental incapacity of the parent, or (3) the physical debilitation and consent of the parent.

(d) The court may appoint a guardian for a minor if all parental rights of custody have been terminated or suspended by prior or current circumstances or prior court order. The juvenile court may appoint a guardian for a child adjudicated to be under subdivision (3)(a) of section 43-247 as provided in section 43-1312.01. A guardian appointed by will as provided in section 30-2606 whose appointment has not been prevented or nullified under section 30-2607 has priority over any guardian who may be appointed by the court, but the court may proceed with an appointment upon a finding that the testamentary guardian has failed to accept the testamentary appointment within thirty days after notice of the guardianship proceeding.

(e) The petition and all other court filings for a guardianship proceeding shall be filed with the clerk of the county court. The party shall state in the petition whether such party requests that the proceeding be heard by the county court or, in cases in which a separate juvenile court already has jurisdiction over the child in need of a guardian under the Nebraska Juvenile Code, such separate juvenile court. Such proceeding is considered a county court proceeding even if heard by a separate juvenile court judge, and an order of the separate juvenile court in such guardianship proceeding has the force and effect of a county court order. The testimony in a guardianship proceeding heard before a separate juvenile court judge shall be preserved as in any other separate juvenile court proceeding.

Source:Laws 1974, LB 354, § 226, UPC § 5-204; Laws 1995, LB 712, § 18; Laws 1998, LB 1041, § 4; Laws 1999, LB 375, § 1; Laws 2014, LB908, § 1; Laws 2018, LB193, § 66.

Cross References

Annotations

30-2609. Court appointment of guardian of minor; venue.

The venue for guardianship proceedings for a minor is in the place where the minor resides or is present or where property is located if he is a nonresident of this state.

Source:Laws 1974, LB 354, § 227, UPC § 5-205.
30-2610. Court appointment of guardian of minor; qualification; priority of minor's nominee.

The court may appoint as guardian any person whose appointment would be in the best interests of the minor. The court shall appoint a person nominated by the minor, if the minor is fourteen years of age or older, unless the court finds the appointment contrary to the best interests of the minor.

Source:Laws 1974, LB 354, § 228, UPC § 5-206.
30-2611. Court appointment of guardian of minor; procedure.

(a) Notice of the time and place of hearing of a petition for the appointment of a guardian of a minor is to be given by the petitioner in the manner prescribed by section 30-2220 to:

(1) the minor, if he is fourteen or more years of age;

(2) the person who has had the principal care and custody of the minor during the sixty days preceding the date of the petition; and

(3) any living parent of the minor.

(b) Upon hearing, if the court finds that a qualified person seeks appointment, venue is proper, the required notices have been given, the requirements of section 30-2608 have been met, and the welfare and best interests of the minor will be served by the requested appointment, it shall make the appointment. In other cases the court may dismiss the proceedings, or make any other disposition of the matter that will best serve the interest of the minor.

(c) If necessary, the court may appoint a temporary guardian, with the status of an ordinary guardian of a minor, but the authority of a temporary guardian shall not last longer than six months. In an emergency, the court may appoint a temporary guardian of a minor without notice, pending notice and hearing.

(d) If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen years of age or older.

Source:Laws 1974, LB 354, § 229, UPC § 5-207; Laws 1978, LB 650, § 20.
30-2612. Consent to service by acceptance of appointment; notice.

By accepting a testamentary or court appointment as guardian, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian, or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner. Letters of guardianship must indicate whether the guardian was appointed by will or by court order.

Source:Laws 1974, LB 354, § 230, UPC § 5-208.
30-2613. Powers and duties of guardian of minor.

(1) A guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his or her minor and unemancipated child, except that a guardian is not legally obligated to provide from his or her own funds for the ward and is not liable to third persons by reason of the parental relationship for acts of the ward. In particular, and without qualifying the foregoing, a guardian has the following powers and duties:

(a) He or she must take reasonable care of his or her ward's personal effects and commence protective proceedings if necessary to protect other property of the ward.

(b) He or she may receive money payable for the support of the ward to the ward's parent, guardian or custodian under the terms of any statutory benefit or insurance system, or any private contract, devise, trust, conservatorship or custodianship. He or she also may receive money or property of the ward paid or delivered by virtue of section 30-2603. Any sums so received shall be applied to the ward's current needs for support, care and education, except as provided in subsections (2) and (3) of this section. He or she must exercise due care to conserve any excess for the ward's future needs unless a conservator has been appointed for the estate of the ward, in which case such excess shall be paid over at least annually to the conservator. Sums so received by the guardian are not to be used for compensation for his or her services except as approved by order of court. A guardian may institute proceedings to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward.

(c) The guardian is empowered to facilitate the ward's education, social, or other activities and to authorize medical or other professional care, treatment, or advice. A guardian is not liable by reason of this consent for injury to the ward resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have consented. A guardian may consent to the marriage or adoption of his or her ward.

(d) A guardian must report the condition of his or her ward and of the ward's estate which has been subject to his or her possession or control, as ordered by court on petition of any person interested in the minor's welfare or as required by court rule, and upon termination of the guardianship settle his or her accounts with the ward or his or her legal representatives and pay over and deliver all of the estate and effects remaining in his or her hands or due from him or her on settlement to the person or persons who shall be lawfully entitled thereto.

(2) The appointment of a guardian for a minor shall not relieve his or her parent or parents, liable for the support of such minor, from their obligation to provide for such minor. For the purposes of guardianship of minors, the application of guardianship income and principal after payment of debts and charges of managing the estate, in relationship to the respective obligations owed by fathers, mothers, and others, for the support, maintenance and education of the minor shall be:

(a) The income and property of the father and mother of the minor in such manner as they can reasonably afford, regard being had to the situation of the family and to all the circumstances of the case;

(b) The guardianship income, in whole or in part, as shall be judged reasonable considering the extent of the guardianship income and the parents' financial ability;

(c) The income and property of any other person having a legal obligation to support the minor, in such manner as the person can reasonably afford, regard being had to the situation of the person's family and to all the circumstances of the case; and

(d) The guardianship principal, either personal or real estate, in whole or in part, as shall be judged for the best interest of the minor, considering all the circumstances of the minor and those liable for his or her support.

(3) Notwithstanding the provisions of subsection (2) of this section, the court may from time to time authorize the guardian to use so much of the guardianship income or principal, whether personal or real estate, as it may deem proper, considering all the circumstances of the minor and those liable for his or her support, if it is shown that (a) an emergency exists which justifies an expenditure, or (b) a fund has been given to the minor for a special purpose and the court can, with reasonable certainty, ascertain such purpose.

(4) The court may require a guardian to furnish a bond in an amount and conditioned in accordance with the provisions of section 30-2640.

(5) A guardian shall not change a ward's place of abode to a location outside of the State of Nebraska without court permission.

Source:Laws 1974, LB 354, § 231, UPC § 5-209; Laws 2011, LB157, § 35.

Annotations

30-2614. Termination of appointment of guardian; general.

A guardian's authority and responsibility terminates upon the death, resignation or removal of the guardian or upon the minor's death, adoption, marriage or attainment of majority, but termination does not affect his liability for prior acts, nor his obligation to account for funds and assets of his ward. Resignation of a guardian does not terminate the guardianship until it has been approved by the court. A testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding.

Source:Laws 1974, LB 354, § 232, UPC § 5-210.
30-2615. Proceedings subsequent to appointment; venue.

(a) The court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting and other proceedings relating to the guardianship.

(b) If the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever is in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

Source:Laws 1974, LB 354, § 233, UPC § 5-211.
30-2616. Resignation or removal proceedings.

(a) Any person interested in the welfare of a ward, or the ward, if fourteen or more years of age, may petition for removal of a guardian on the ground that removal would be in the best interest of the ward. A guardian may petition for permission to resign. A petition for removal or for permission to resign may, but need not, include a request for appointment of a successor guardian.

(b) After notice and hearing on a petition for removal or for permission to resign, the court may terminate the guardianship and make any further order that may be appropriate.

(c) If, at any time in the proceeding, the court determines that the interests of the ward are, or may be, inadequately represented, it may appoint an attorney to represent the minor, giving consideration to the preference of the minor if the minor is fourteen or more years of age.

Source:Laws 1974, LB 354, § 234, UPC § 5-212.

Annotations

30-2617. Testamentary appointment of guardian for incapacitated person.

(a) The parent of an incapacitated person may by will appoint a guardian of the incapacitated person. A testamentary appointment by a parent becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated if, prior thereto, both parents are dead or the surviving parent is adjudged incapacitated. If both parents are dead, an effective appointment by the parent who died later has priority unless it is terminated by the denial of probate in formal proceedings.

(b) The spouse of a married incapacitated person may by will appoint a guardian of the incapacitated person. The appointment becomes effective when, after having given seven days' prior written notice of his intention to do so to the incapacitated person and to the person having his care or to his nearest adult relative, the guardian files acceptance of appointment in the court in which the will is informally or formally probated. An effective appointment by a spouse has priority over an appointment by a parent unless it is terminated by the denial of probate in formal proceedings.

(c) This state shall recognize a testamentary appointment effected by filing acceptance under a will probated at the testator's domicile in another state.

(d) On the filing with the court in which the will was probated of written objection to the appointment by the person for whom a testamentary appointment of guardian has been made, the appointment is terminated. An objection does not prevent appointment by the court in a proper proceeding of the testamentary nominee or any other suitable person upon an adjudication of incapacity in proceedings under the succeeding sections of this part.

Source:Laws 1974, LB 354, § 235, UPC § 5-301.

Cross References

30-2618. Venue.

Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, the venue for guardianship proceedings for an incapacitated person is in the place where the incapacitated person resides or is present, or where property is located if he or she is a nonresident. If the incapacitated person is admitted to an institution pursuant to order of a court of competent jurisdiction, venue is also in the county in which that court sits.

Source:Laws 1974, LB 354, § 236, UPC § 5-302; Laws 2011, LB157, § 36.

Cross References

30-2619. Procedure for court appointment of a guardian or standby guardian of a person alleged to be incapacitated.

(a) The person alleged to be incapacitated or any person interested in his or her welfare may petition for a finding of incapacity and appointment of a guardian or a standby guardian. The petition shall be verified and shall contain specific allegations with regard to each of the areas as provided under section 30-2619.01 in which the petitioner claims that the person alleged to be incapacitated lacks sufficient understanding to make or communicate responsible decisions concerning his or her own person. An interested person may file a motion to make more definite and certain requesting a specific description of the functional limitations and physical and mental condition of the person alleged to be incapacitated with the specific reasons prompting the request for guardianship.

(b) Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the person alleged to be incapacitated has retained counsel of his or her own choice or has otherwise indicated a desire for an attorney of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding. The court may appoint a guardian ad litem as provided in sections 30-4201 to 30-4210 to advocate for the best interests of the person alleged to be incapacitated.

(c) The person alleged to be incapacitated may be examined by a physician appointed by the court. The physician shall submit his or her report in writing to the court and may be interviewed by a visitor, if so appointed pursuant to sections 30-2619.01 and 30-2624, sent by the court.

(d) The person alleged to be incapacitated is entitled to be present at the hearing in person and to see and hear all evidence bearing upon his or her condition. He or she is entitled to be present by counsel, to compel the attendance of witnesses, to present evidence, to cross-examine witnesses, including the court-appointed physician and the visitor appointed by the court pursuant to sections 30-2619.01 and 30-2624, and to appeal any final orders or judgments. The issue may be determined at a closed hearing only if the person alleged to be incapacitated or his or her counsel so requests.

(e) At any hearing conducted under this section, the court may designate one or more standby guardians of the person whose appointment will become effective immediately upon the death, unwillingness or inability to act, resignation, or removal by the court of the initially appointed guardian and upon compliance with any rules promulgated by the Supreme Court. The standby guardian shall have the same powers and duties as the initially appointed guardian. The standby guardian shall receive a copy of the order establishing or modifying the initial guardianship and the order designating the standby guardian. Upon assuming office, the standby guardian shall so notify the court in writing. Upon notification and upon compliance with any rules promulgated by the Supreme Court, the court shall issue new letters of guardianship that specify that the standby guardianship appointment is permanent. A standby guardian shall complete the training required by section 30-2601.01 at the time or times required by rules promulgated by the Supreme Court or as otherwise provided by order of the county court.

(f) The Public Guardian shall not be appointed as a standby guardian.

Source:Laws 1974, LB 354, § 237, UPC § 5-303; Laws 1978, LB 650, § 21; Laws 1982, LB 428, § 1; Laws 1993, LB 782, § 5; Laws 1997, LB 466, § 6; Laws 2015, LB43, § 2; Laws 2016, LB934, § 26.

Annotations

30-2619.01. Visitor appointment; conduct evaluation; duties.

Following the filing of a petition, the court may appoint a visitor and direct such visitor to conduct an evaluation of the allegations of incapacity as provided under this section. To conduct the evaluation of the allegations of incapacity, the visitor shall interview the allegedly incapacitated person, the person seeking appointment as guardian, the agencies providing services to the allegedly incapacitated person, and other persons and agencies that may provide relevant information. The visitor shall also visit the present place of abode of the person alleged to be incapacitated and, if any change of residence is anticipated, the place it is proposed that he or she will be detained or reside if the requested appointment is made, and submit his or her report in writing to the court.

As part of the evaluation of allegations of incapacity, a visitor, if appointed, shall obtain evidence relating to the allegedly incapacitated person's ability to make, communicate, or carry out responsible decisions concerning his or her person with regard to:

(1) Selecting his or her place of abode within or without this state;

(2) Arranging for his or her medical care;

(3) Protecting his or her personal effects;

(4) Giving necessary consents, approvals, or releases;

(5) Arranging for training, education, or other habilitating services appropriate to him or her;

(6) Applying for private or governmental benefits to which he or she may be entitled;

(7) Instituting proceedings to compel any person liable for the support of the proposed ward to support him or her if no conservator has been appointed for the proposed ward;

(8) Entering into contractual agreements if no conservator has been appointed for the proposed ward;

(9) Receiving money and tangible property deliverable to him or her and applying such money and property to his or her expenses for room and board, medical care, personal effects, training, education, and habilitative services; and

(10) Any other area of inquiry which the court may direct.

Source:Laws 1982, LB 428, § 2.

Cross References

Annotations

30-2619.02. Visitor's evaluation; how conducted.

The guardianship evaluation by the visitor shall be conducted with minimum interference with the allegedly incapacitated person's activities. Any interviews and examinations shall take place in the usual residence unless the visitor deems it necessary to conduct the interview or examination elsewhere. In cases of such necessity, the interview or examination shall take place during normal business hours.

Source:Laws 1982, LB 428, § 3.
30-2619.03. Visitor's evaluation report; contents.

The visitor shall file an evaluation report based upon the evaluation of the allegations of incapacity with the court within sixty days of the filing of the guardianship petition. Copies of the evaluation report shall be made available to the guardian ad litem, the proposed ward, and the petitioner. The evaluation report shall contain:

(1) A record of the visitor's interviews;

(2) Evidence obtained in each of the categories listed in section 30-2619.01;

(3) Recommendations as to the need of the proposed ward for a guardian in each of the areas listed in section 30-2619.01;

(4) The visitor's opinion as to the appropriateness of the person seeking appointment as guardian;

(5) Recommendations as to other appropriate candidates; and

(6) The visitor's opinion as to the needed duration of the guardianship.

Source:Laws 1982, LB 428, § 4.
30-2619.04. Visitor's evaluation report; responses.

The petitioner and the proposed ward shall have ten judicial days to file responses to the visitor's evaluation report.

Source:Laws 1982, LB 428, § 5.
30-2620. Findings; appointment of guardian; authority and responsibility of guardian.

(a) 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. If the court finds that a guardianship should be created, the guardianship shall be a limited guardianship unless the court finds by clear and convincing evidence that a full guardianship is necessary. If a limited guardianship is created, the court shall, at the time of appointment or later, specify the authorities and responsibilities which the guardian and ward, acting together or singly, shall have with regard to:

(1) Selecting the ward's place of abode within this state or, with court permission, outside of this state;

(2) Arranging for medical care for the ward;

(3) Protecting the personal effects of the ward;

(4) Giving necessary consent, approval, or releases on behalf of the ward;

(5) Arranging for training, education, or other habilitating services appropriate for the ward;

(6) Applying for private or governmental benefits to which the ward may be entitled;

(7) Instituting proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such duty, if no conservator has been appointed;

(8) Entering into contractual arrangements on behalf of the ward, if no conservator has been appointed; and

(9) Receiving money and tangible property deliverable to the ward and applying such money and property to the ward's expenses for room and board, medical care, personal effects, training, education, and habilitating services, if no conservator has been appointed, or requesting the conservator to expend the ward's estate by payment to third persons to meet such expenses.

(b) In a limited guardianship, the powers shall be endorsed upon the letters of appointment of the guardian and shall be treated as specific limitations upon the general powers, rights, and duties accorded by law to the guardian. In a full guardianship, the letters of appointment shall specify that the guardian is granted all powers conferred upon guardians by law. After appointment, the ward may retain an attorney for the sole purpose of challenging the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward.

(c) A guardian shall not change a ward's place of abode to a location outside of the State of Nebraska without court permission.

Source:Laws 1974, LB 354, § 238, UPC § 5-304; Laws 1982, LB 428, § 6; Laws 1993, LB 782, § 6; Laws 1997, LB 466, § 7; Laws 2011, LB157, § 37.

Annotations

30-2620.01. Attorney, guardian ad litem, physician, and visitor; fees and costs; in forma pauperis proceedings; frivolous actions.

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, and a visitor appointed by the court for the person alleged to be incapacitated shall be allowed, disallowed, or adjusted by the court and may be paid from the estate of the ward if the ward possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. An action under sections 30-2601 to 30-2661 may be initiated or defended in forma pauperis in accordance with sections 25-2301 to 25-2310. The court may assess attorney's fees and costs against the petitioner upon a showing that the action was frivolous in accordance with sections 25-824 to 25-824.03.

Source:Laws 1982, LB 428, § 7; Laws 1993, LB 782, § 7; Laws 1999, LB 689, § 14.

Annotations

30-2621. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a guardian submits personally to the jurisdiction of the court in any proceeding relating to the guardianship that may be instituted by any interested person. Notice of any proceeding shall be delivered to the guardian or mailed to him by ordinary mail at his address as listed in the court records and to his address as then known to the petitioner.

Source:Laws 1974, LB 354, § 239, UPC § 5-305.
30-2622. Termination of guardianship for incapacitated person; liability for prior acts; obligation to account.

The authority and responsibility of a guardian for an incapacitated person terminates upon the death of the guardian or ward, the determination of incapacity of the guardian, or upon removal or resignation as provided in section 30-2623. Testamentary appointment under an informally probated will terminates if the will is later denied probate in a formal proceeding. Termination does not affect his liability for prior acts nor his obligation to account for funds and assets of his ward.

Source:Laws 1974, LB 354, § 240, UPC § 5-306; Laws 1975, LB 481, § 19.
30-2623. Removal or resignation of guardian; termination of incapacity.

(a) On petition of the ward or any person interested in his welfare, the court may remove a guardian and appoint a successor if in the best interests of the ward. On petition of the guardian, the court may accept his resignation and make any other order which may be appropriate.

(b) An order adjudicating incapacity may specify a minimum period, not exceeding one year, during which no petition for an adjudication that the ward is no longer incapacitated may be filed without special leave. Subject to this restriction, the ward or any person interested in his welfare may petition for an order that he is no longer incapacitated, and for removal or resignation of the guardian. A request for this order may be made by informal letter to the court or judge and any person who knowingly interferes with transmission of this kind of request to the court or judge may be adjudged guilty of contempt of court.

(c) Before removing a guardian, accepting the resignation of a guardian, or ordering that a ward's incapacity has terminated, the court, following the same procedures to safeguard the rights of the ward as apply to a petition for appointment of a guardian, may send a visitor to the residence of the present guardian and to the place where the ward resides or is detained, to observe conditions and report in writing to the court.

Source:Laws 1974, LB 354, § 241, UPC § 5-307.

Annotations

30-2624. Visitor; qualifications.

A visitor shall be trained in law, nursing, social work, mental health, gerontology, or developmental disabilities and shall be an officer, employee, or special appointee of the court with no personal interest in the proceedings.

Any qualified person may be appointed visitor of a proposed ward, except that it shall be unlawful for any owner, part owner, manager, administrator, or employee, or any spouse of an owner, part owner, manager, administrator, or employee of a nursing home, room and board home, convalescent home, group care home, or institution providing residential care to any person with a physical disability, with an intellectual disability, with an infirmity, or who is aged to be appointed visitor of any such person residing, being under care, receiving treatment, or being housed in any such home or institution within the State of Nebraska.

The court shall select the visitor who has the expertise to most appropriately evaluate the needs of the person who is allegedly incapacitated.

The court shall maintain a current list of persons trained in or having demonstrated expertise in the areas of mental health, intellectual disability, drug abuse, alcoholism, gerontology, nursing, and social work, for the purpose of appointing a suitable visitor.

Source:Laws 1974, LB 354, § 242, UPC § 5-308; Laws 1982, LB 428, § 8; Laws 2013, LB23, § 5.
30-2625. Notices in guardianship proceedings.

(a) In a proceeding for the appointment of a guardian for a person alleged to be incapacitated or the removal of a guardian of a ward other than the appointment of a temporary guardian or temporary suspension of a guardian, notice of hearing shall be given to each of the following:

(1) The ward or the person alleged to be incapacitated and his or her spouse, parents, and adult children;

(2) Any person who is serving as guardian or conservator of the ward or who has care and custody of a person alleged to be incapacitated; and

(3) If no other person is notified under subdivision (1) of this subsection, at least one of the closest adult relatives of the ward or person alleged to be incapacitated, if any can be found.

(b) Notice which is appropriate to the circumstances of the ward or person alleged to be incapacitated shall be served personally at least fourteen days prior to the hearing on the ward or person alleged to be incapacitated and his or her spouse and parents if they can be found within the state. The court may require the petitioner to serve notice in alternative formats or with appropriate auxiliary aids and services if necessary to ensure equally effective communication with the ward or person alleged to be incapacitated, including, but not limited to, the use of braille, sign language, large print, reading aloud, or other reasonable accommodation for the known disabilities of the individual based on the allegations specified in the petition. Waiver of notice by the person alleged to be incapacitated shall not be effective unless he or she attends the hearing and the court determines that the waiver is appropriate.

(c) In addition to notifying him or her of the filing of the petition and the time and place of the hearing on the petition, the notice required to be served upon the person alleged to be incapacitated shall list the following rights of the person:

(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 the guardian, if appointed, be limited by the court;

(4) The right to be notified regarding how to contact the temporary guardian if a temporary guardian is appointed;

(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.

(d) If a temporary guardian has been appointed, the notice required in subsection (c) of this section shall include a notice of such appointment and of the right to request an expedited hearing pursuant to section 30-2626.

Source:Laws 1974, LB 354, § 243, UPC § 5-309; Laws 1978, LB 650, § 38; Laws 1982, LB 428, § 9; Laws 1993, LB 782, § 8; Laws 1997, LB 466, § 8.
30-2626. Temporary guardians; limited temporary guardians; power of court.

(a)(1) If a person alleged to be incapacitated has no guardian and an emergency exists, the court may, pending notice and hearing, exercise the power of a guardian or enter an ex parte order appointing a temporary guardian to address the emergency. The order and letters of temporary guardianship shall specify the powers and duties of the temporary guardian, limiting the powers and duties to those necessary to address the emergency.

(2)(i) For purposes of this subdivision (a)(2):

(A) Benefits means private or government benefits to which a person alleged to be incapacitated may be entitled; and

(B) Covered county means a county containing a city of the metropolitan class or a city of the primary class.

(ii) Subject to subsection (k) of this section, if a person alleged to be incapacitated has no guardian and an emergency exists, the court in a covered county may, pending notice and hearing, enter an ex parte order appointing a temporary guardian for the limited purpose of assisting the person in applying for, validating, and facilitating eligibility for benefits.

(iii) The limited temporary guardian may access personal and financial records of such person as necessary to apply for, validate, and facilitate eligibility for benefits. The order and letters of limited temporary guardianship shall limit the powers and duties to those necessary to carry out this subdivision (a)(2).

(iv) Third parties, including, but not limited to, financial institutions, in possession of such person's financial and personal records related to eligibility for benefits shall provide the limited temporary guardian access to such records. Records to which a limited temporary guardian may be entitled include, but are not limited to, records relating to: Checking, savings, or other bank accounts; household expenses; health, life, or other insurance; wages; pensions; annuities; real property; trusts; burial plans; retirement accounts; stocks and bonds; farm and business equipment; motor vehicles, boats, and motor homes; immigration status; land contracts; promissory notes and loans; social security benefits; credit cards; taxes; or any other asset.

(b) When the court takes action to exercise the powers of a guardian or to appoint a temporary guardian under subsection (a) of this section, an expedited hearing shall be held if requested by the person alleged to be incapacitated, or by any interested person, if the request is filed more than ten business days prior to the date set for the hearing on the petition for appointment of the guardian. If an expedited hearing is to be held, the hearing shall be held within ten business days after the request is received. At the hearing on the temporary appointment, the petitioner shall have the burden of showing by a preponderance of the evidence that temporary guardianship continues to be necessary to address the emergency situation. Unless the person alleged to be incapacitated has counsel of his or her own choice, the court may appoint an attorney to represent the person alleged to be incapacitated at the hearing as provided in section 30-2619.

(c) If an expedited hearing is requested, notice shall be served as provided in section 30-2625. The notice shall specify that a temporary guardian has been appointed and shall be given at least twenty-four hours prior to the expedited hearing.

(d) At the expedited hearing, the court may render a judgment authorizing the temporary guardianship to continue beyond the original ten-day period. The judgment shall prescribe the specific powers and duties of the temporary guardian in the letters of temporary guardianship and shall be effective for a single ninety-day period. For good cause shown, the court may extend the temporary guardianship for successive ninety-day periods.

(e)(1) The temporary guardianship shall terminate at the end of the ninety-day period in which the temporary guardianship is valid or at any time prior thereto if the court deems the circumstances leading to the order for temporary guardianship no longer exist or if an order has been entered as a result of a hearing pursuant to section 30-2619 which has been held during the ninety-day period.

(2) When the duties of a limited temporary guardian appointed pursuant to subdivision (a)(2) of this section have not been completed within ninety days, the court shall accept notification by such guardian as good cause for extending the limited temporary guardianship for an additional ninety days.

(f) If the court denies the request for the ex parte order, the court may, in its discretion, enter an order for an expedited hearing pursuant to subsections (b) through (e) of this section.

(g) If the petitioner requests the entry of an order of temporary guardianship pursuant to subsection (a) of this section without requesting an ex parte order, the court may hold an expedited hearing pursuant to subsections (b) through (e) of this section.

(h) If an appointed guardian is not effectively performing his or her duties and the court further finds that the welfare of the incapacitated person requires immediate action, it may, pending notice and hearing in accordance with section 30-2220, appoint a temporary guardian for the incapacitated person for a specified period not to exceed ninety days. For good cause shown, the court may extend the temporary guardianship for successive ninety-day periods. A temporary guardian appointed pursuant to this subsection has only the powers and duties specified in the previously appointed guardian's letters of guardianship, and the authority of any permanent guardian previously appointed by the court is suspended so long as a temporary guardian has authority.

(i) A temporary guardian may be removed at any time. A temporary guardian shall make any report the court requires, except that a temporary guardian shall not be required to provide the check or report under section 30-2602.02. In other respects the provisions of the Nebraska Probate Code concerning guardians apply to temporary guardians.

(j) The court may appoint the Public Guardian as the temporary guardian pursuant to the Public Guardianship Act.

(k)(1) If the Public Guardian is unable to accept appointment as a limited temporary guardian for the purposes described in subdivision (a)(2) of this section because the Public Guardian has exceeded the average ratio described in subsection (2) of section 30-4115, the court shall appoint an individual to serve as a limited temporary guardian. Appointments of such limited temporary guardians shall be subject to the availability of funds appropriated as described in section 81-3141. When such funds have been exhausted in a fiscal year, no further appointments shall be made.

(2) An individual appointed as a limited temporary guardian pursuant to subdivision (a)(2) of this section shall apply to the court for expenses and fees for services performed. The court, upon hearing the application, shall fix reasonable expenses and fees, and the county board shall pay such guardian in the full amount determined by the court. The court shall set such expenses and fees at levels that: (i) Are similar to expenses and fees paid to guardians and guardians ad litem for comparable work in other legal proceedings in the county; and (ii) are intended to incentivize qualified individuals to provide high-quality services as limited temporary guardians.

(3) A county that has paid expenses and fees as provided in subdivision (k)(2) of this section may apply under section 81-3141 for reimbursement.

Source:Laws 1974, LB 354, § 244, UPC § 5-310; Laws 1978, LB 650, § 22; Laws 1993, LB 782, § 9; Laws 1997, LB 466, § 9; Laws 2011, LB157, § 38; Laws 2014, LB920, § 22; Laws 2023, LB157, § 9.
Operative Date: September 2, 2023

Cross References

Annotations

30-2627. Who may be guardian; priorities; bond.

(a) Any competent person or the Public Guardian may be appointed guardian of a person alleged to be incapacitated, except that it shall be unlawful for any agency providing residential care in an institution or community-based program, or any owner, part owner, manager, administrator, employee, or spouse of an owner, part owner, manager, administrator, or employee of any nursing home, room and board home, assisted-living facility, or institution engaged in the care, treatment, or housing of any person physically or mentally handicapped, infirm, or aged to be appointed guardian of any such person residing, being under care, receiving treatment, or being housed in any such home, facility, or institution within the State of Nebraska. Nothing in this subsection shall prevent the spouse, adult child, parent, or other relative of the person alleged to be incapacitated from being appointed guardian or prevent the guardian officer for one of the Nebraska veterans homes as provided in section 80-327 from being appointed guardian or conservator for the person alleged to be incapacitated. It shall be unlawful for any county attorney or deputy county attorney appointed as guardian for a person alleged to be incapacitated to circumvent his or her duties or the rights of the ward pursuant to the Nebraska Mental Health Commitment Act by consenting to inpatient or outpatient psychiatric treatment over the objection of the ward.

(b) Persons who are not disqualified under subsection (a) of this section and who exhibit the ability to exercise the powers to be assigned by the court have priority for appointment as guardian in the following order:

(1) A person nominated most recently by one of the following methods:

(i) A person nominated by the incapacitated person in a power of attorney or a durable power of attorney;

(ii) A person acting under a power of attorney or durable power of attorney; or

(iii) A person nominated by an attorney in fact who is given power to nominate in a power of attorney or a durable power of attorney executed by the incapacitated person;

(2) The spouse of the incapacitated person;

(3) An adult child of the incapacitated person;

(4) A parent of the incapacitated person, including a person nominated by will or other writing signed by a deceased parent;

(5) Any relative of the incapacitated person with whom he or she has resided for more than six months prior to the filing of the petition;

(6) A person nominated by the person who is caring for him or her or paying benefits to him or her;

(7) The Public Guardian.

(c) When appointing a guardian, the court shall take into consideration the expressed wishes of the allegedly incapacitated person. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority. With respect to persons having equal priority, the court shall select the person it deems best qualified to serve.

(d) In its order of appointment, unless waived by the court, the court shall require any person appointed as guardian to successfully complete within three months of such appointment a training program approved by the Public Guardian. If the person appointed as guardian does not complete the training program, the court shall issue an order to show cause why such person should not be removed as guardian.

(e) The court may require a guardian to furnish a bond in an amount and conditioned in accordance with the provisions of sections 30-2640 and 30-2641. The Public Guardian shall not be required to post bond.

Source:Laws 1974, LB 354, § 245, UPC § 5-311; Laws 1982, LB 428, § 10; Laws 1985, LB 292, § 2; Laws 1993, LB 782, § 10; Laws 1997, LB 396, § 2; Laws 1997, LB 466, § 10; Laws 1997, LB 608, § 1; Laws 2014, LB920, § 23.

Cross References

Annotations

30-2628. General powers, rights, and duties of guardian; inventory.

(a) Except as limited by section 30-2620, a guardian of an incapacitated person has the same powers, rights, and duties respecting the guardian's ward that a parent has respecting the parent's unemancipated minor child, except that a guardian is not liable to third persons for acts of the ward solely by reason of the parental relationship. In particular, and without qualifying the foregoing, a guardian has the following powers and duties, except as may be specified by order of the court:

(1) To the extent that it is consistent with the terms of any order by a court of competent jurisdiction relating to detention or commitment of the ward, a guardian is entitled to custody of the person of his or her ward and may establish the ward's place of abode within this state or, with court permission, outside of this state. When establishing the ward's place of abode, a guardian shall make every reasonable effort to ensure that the placement is the least restrictive alternative. A guardian shall authorize a placement to a more restrictive environment only after careful evaluation of the need for such placement. The guardian may obtain a professional evaluation or assessment that such placement is in the best interest of the ward.

(2) If entitled to custody of his or her ward, a guardian shall make provision for the care, comfort, and maintenance of his or her ward and, whenever appropriate, arrange for the ward's training and education. Without regard to custodial rights of the ward's person, a guardian shall take reasonable care of his or her ward's clothing, furniture, vehicles, and other personal effects and commence protective proceedings if other property of his or her ward is in need of protection.

(3) A guardian may give any consents or approvals that may be necessary to enable the ward to receive medical, psychiatric, psychological, or other professional care, counsel, treatment, or service. When making such medical or psychiatric decisions, the guardian shall consider and carry out the intent of the ward expressed prior to incompetency to the extent allowable by law. Notwithstanding this provision or any other provision of the Nebraska Probate Code, the ward may authorize the release of financial, medical, and other confidential records pursuant to sections 20-161 to 20-166.

(4) If no conservator for the estate of the ward has been appointed, a guardian shall, within thirty days after appointment, prepare and file with the appointing court a complete inventory of the ward's estate together with the guardian's oath or affirmation that the inventory is complete and accurate so far as the guardian is informed. The guardian shall mail a copy thereof by first-class mail to the ward, if the ward can be located and has attained the age of fourteen years, and to all other interested persons as defined in section 30-2601. The guardian shall file with the court a certificate of mailing showing that copies were sent to all interested persons by first-class mail along with a form to send back to the court that indicates if such person wants to continue receiving notifications about the proceedings. The guardian shall keep suitable records of the guardian's administration and exhibit the same on request of any interested person. To the extent a guardian, who has not been named a conservator, has possession or control of the ward's estate, the guardian shall file with the court an updated inventory every year along with a certificate of mailing showing that copies were sent to all interested persons and, if a bond has been required, to the bonding company by first-class mail.

(5) If no conservator for the estate of the ward has been appointed, a guardian may:

(i) Institute proceedings to compel any person under a duty to support the ward or to pay sums for the welfare of the ward to perform such person's duty;

(ii) Receive money and tangible property deliverable to the ward and apply the money and property for support, care, and education of the ward; but a guardian may not use funds from his or her ward's estate for room and board which the guardian or the guardian's spouse, parent, or child has furnished the ward unless a charge for the service is approved by order of the court made upon notice to at least one of the next of kin of the ward, if notice is possible. A guardian must exercise care to conserve any excess for the ward's needs; and

(iii) Exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property when authorized by a court acting under the authority of subsection (f) of section 30-3854. In acting under the authority of subsection (f) of section 30-3854, the court shall proceed in the same manner as provided under subdivision (3) of section 30-2637.

(6) A guardian is required to report the condition of his or her ward and of the estate which has been subject to the guardian's possession or control, at least every year and as required by the court or court rule. The court shall receive from any interested person, for a period of thirty days after the filing of the guardian's report, any comments with regard to the need for continued guardianship or amendment of the guardianship order. If the court has reason to believe that additional rights should be returned to the ward or assigned to the guardian, the court shall set a date for a hearing and may provide all protections as set forth for the original finding of incapacity and appointment of a guardian.

(7) If a conservator has been appointed, all of the ward's estate received by the guardian in excess of those funds expended to meet current expenses for support, care, and education of the ward must be paid to the conservator for management as provided in the Nebraska Probate Code, and the guardian must account to the conservator for funds expended.

(b) Any guardian of one for whom a conservator also has been appointed shall control the custody and care of the ward and is entitled to receive reasonable sums for the guardian's services and for room and board furnished to the ward as agreed upon between the guardian and the conservator if the amounts agreed upon are reasonable under the circumstances. The guardian may request the conservator to expend the ward's estate by payment to third persons or institutions for the ward's care and maintenance.

(c) Nothing in subdivision (a)(3) of this section or in any other part of this section shall be construed to alter the decisionmaking authority of an attorney in fact designated and authorized under sections 30-3401 to 30-3432 to make health care decisions pursuant to a power of attorney for health care.

Source:Laws 1974, LB 354, § 246, UPC § 5-312; Laws 1982, LB 428, § 11; Laws 1993, LB 782, § 11; Laws 1997, LB 466, § 11; Laws 2003, LB 130, § 130; Laws 2011, LB157, § 39; Laws 2013, LB172, § 2.

Annotations

30-2629. Proceedings subsequent to appointment; venue.

(a) Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, the court where the ward resides has concurrent jurisdiction with the court which appointed the guardian, or in which acceptance of a testamentary appointment was filed, over resignation, removal, accounting, and other proceedings relating to the guardianship.

(b) Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, if the court located where the ward resides is not the court in which acceptance of appointment is filed, the court in which proceedings subsequent to appointment are commenced shall in all appropriate cases notify the other court, in this or another state, and after consultation with that court determine whether to retain jurisdiction or transfer the proceedings to the other court, whichever may be in the best interest of the ward. A copy of any order accepting a resignation or removing a guardian shall be sent to the court in which acceptance of appointment is filed.

(c) Any action or proposed action by a guardian may be challenged at any time by any interested person.

Source:Laws 1974, LB 354, § 247, UPC § 5-313; Laws 1997, LB 466, § 12; Laws 2011, LB157, § 40.

Cross References

30-2630. Protective proceedings.

Upon petition and after notice and hearing in accordance with the provisions of this part, the court may appoint a conservator or make other protective order for cause as follows:

(1) Appointment of a conservator or other protective order may be made in relation to the estate and property affairs of a minor if the court is satisfied by clear and convincing evidence that a minor owns money or property that requires management or protection which cannot otherwise be provided, has or may have business affairs which may be jeopardized or prevented by his or her minority, or that funds are needed for his or her support and education and that protection is necessary or desirable to obtain or provide funds.

(2) Appointment of a conservator or other protective order may be made in relation to the estate and property affairs of a person if the court is satisfied by clear and convincing evidence that (i) the person is unable to manage his or her property and property affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, confinement, or lack of discretion in managing benefits received from public funds, detention by a foreign power, or disappearance; and (ii) the person has property which will be wasted or dissipated unless proper management is provided, or that funds are needed for the support, care, and welfare of the person or those entitled to be supported by him or her and that protection is necessary or desirable to obtain or provide funds.

Source:Laws 1974, LB 354, § 248, UPC § 5-401; Laws 1982, LB 428, § 12; Laws 1993, LB 782, § 12.

Annotations

30-2630.01. Temporary conservator; power of court.

(a) If a person alleged to be in need of protection under section 30-2630 has no conservator and an emergency exists, the court may, pending notice and hearing, exercise the power of a conservator or enter an emergency protective order appointing a temporary conservator, who may be the Public Guardian, to address the emergency.

(b) When the court takes action to exercise the powers of a conservator or to appoint a temporary conservator under subsection (a) of this section, an expedited hearing shall be held if requested by the person alleged to be in need of protection, or by any interested person, if the request is filed more than ten business days prior to the date set for the hearing on the petition for appointment of the conservator. If an expedited hearing is to be held, the hearing shall be held within ten business days after the request is received. At the hearing on the temporary appointment, the petitioner shall have the burden of showing by a preponderance of the evidence that temporary conservatorship continues to be necessary to address the emergency situation. Unless the person alleged to be in need of protection has counsel of his or her own choice, the court may appoint an attorney to represent the person at the hearing as provided in section 30-2636.

(c) If an expedited hearing is requested, notice shall be served as provided in section 30-2634. The notice shall specify that a temporary conservator has been appointed and shall be given at least twenty-four hours prior to the expedited hearing.

(d) At the expedited hearing, the court may render a judgment authorizing the temporary conservatorship to continue beyond the original ten-day period. The judgment shall prescribe the specific powers and duties of the temporary conservator in the letters of temporary conservatorship and shall be effective for a ninety-day period. For good cause shown, the court may extend the temporary conservatorship for successive ninety-day periods.

(e) The temporary conservatorship shall terminate at the end of the ninety-day period in which the temporary conservatorship is valid or at any time prior thereto if the court deems the circumstances leading to the order for temporary conservatorship no longer exist or if an order has been entered as a result of a hearing pursuant to section 30-2636 which has been held during the ninety-day period.

(f) If the court denies the request for the ex parte order, the court may, in its discretion, enter an order for an expedited hearing pursuant to subsections (b) through (e) of this section.

(g) If the petitioner requests the entry of an order of temporary conservatorship pursuant to subsection (a) of this section without requesting an ex parte order, the court may hold an expedited hearing pursuant to subsections (b) through (e) of this section.

(h) A temporary conservator may be removed at any time. A temporary conservator shall make any report the court requires, except that a temporary conservator shall not be required to provide the national criminal history record check and report under section 30-2602.02. In other respects the provisions of the Nebraska Probate Code concerning conservators apply to temporary conservators.

Source:Laws 1993, LB 782, § 13; Laws 1997, LB 466, § 13; Laws 2011, LB157, § 41; Laws 2014, LB920, § 24.
30-2631. Protective proceedings; jurisdiction of affairs of protected persons.

After the service of notice in a proceeding seeking the appointment of a conservator or other protective order and until termination of the proceeding, the court in which the petition is filed has:

(1) exclusive jurisdiction to determine the need for a conservator or other protective order until the proceedings are terminated;

(2) exclusive jurisdiction to determine how the estate of the protected person which is subject to the laws of this state shall be managed, expended or distributed to or for the use of the protected person or any of his dependents;

(3) concurrent jurisdiction to determine the validity of claims against the person or estate of the protected person and his title to any property or claim.

Source:Laws 1974, LB 354, § 249, UPC § 5-402.
30-2632. Venue.

Unless otherwise provided in the Nebraska Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, venue for proceedings under this part is:

(1) In the place in this state where the person to be protected resides whether or not a guardian has been appointed in another place; or

(2) If the person to be protected does not reside in this state, in any place where he or she has property.

Source:Laws 1974, LB 354, § 250, UPC § 5-403; Laws 2011, LB157, § 42.

Cross References

30-2633. Original petition for appointment or protective order.

(a) The person to be protected, any person who is interested in his or her estate, property affairs, or welfare including his or her parent, guardian, or custodian, or any person who would be adversely affected by lack of effective management of his or her property and property affairs may petition for the appointment of a conservator or for other appropriate protective order.

(b) The petition shall set forth, to the extent known, the interest of the petitioner; the name, age, residence, and address of the person to be protected; the name and address of his or her guardian, if any; the name and address of his or her nearest relative known to the petitioner; a general statement of his or her property with an estimate of the value thereof, including any compensation, insurance, pension, or allowance to which he or she is entitled; and specific allegations regarding the necessity of the appointment of a conservator or other protective order. If the appointment of a conservator is requested, the petition shall also set forth the name and address of the person whose appointment is sought and the basis of his or her priority for appointment. An interested person may file a motion to make more definite and certain requesting a specific description of the functional limitations and physical and mental condition of the person sought to be protected with the specific reasons prompting the request for conservatorship.

Source:Laws 1974, LB 354, § 251, UPC § 5-404; Laws 1982, LB 428, § 13; Laws 1993, LB 782, § 14; Laws 1997, LB 466, § 14.

Annotations

30-2634. Notice; waiver.

(a) In a proceeding for appointment of a conservator or other protective order, notice of hearing shall be given to each of the following:

(1) The person to be protected and his or her spouse, parents, and adult children;

(2) Any person who is serving as guardian or conservator or who has care and custody of the person to be protected; and

(3) If no other person is notified under subdivision (1) of this subsection, at least one of the closest adult relatives of the person to be protected, if any can be found.

(b) Notice which is appropriate to the circumstances of the person to be protected shall be served personally at least fourteen days prior to the hearing on the person to be protected and his or her spouse and parents if they can be found within the state. The court may require the petitioner to serve notice in alternative formats or with appropriate auxiliary aids and services if necessary to ensure equally effective communication with the protected person or person in need of protection, including, but not limited to, the use of braille, sign language, large print, reading aloud, or other reasonable accommodation for the known disabilities of the individual based on the allegations specified in the petition.

(c) If petitioners are the natural parents or if petitioner is a surviving natural parent or a parent who has been given sole and exclusive custody of the minor in a legal proceeding, petitioners or petitioner may waive notice to parents and may also waive notice to the minor, if the minor is under the age of fourteen years. Waiver of notice by the person to be protected shall not be effective unless he or she attends the hearing and the court determines that the waiver is appropriate. The court may, in its discretion, direct that notice be given as provided in section 30-2220 or in any other manner and to any other persons as the court may determine.

(d) Notice of a petition for appointment of a conservator or other initial protective order, and of any subsequent hearing, must be given to any person who has filed a request for notice under section 30-2635 and to interested persons and other persons as the court may direct. Except as otherwise provided in subsections (a) and (b) of this section, notice shall be given in accordance with section 30-2220.

(e) In addition to notifying him or her of the filing of the petition and the time and place of the hearing on the petition, the notice required to be served upon the person to be protected shall list the following rights of the person:

(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 be notified regarding how to contact the temporary conservator if a temporary conservator is appointed;

(4) The right to compel attendance of witnesses;

(5) The right to cross-examine witnesses, including the court-appointed physician;

(6) The right to appeal any final order; and

(7) The right to request a hearing closed to the public.

(f) If a temporary conservator has been appointed, the notice required in subsection (e) of this section shall include a notice of such appointment and the right to request an expedited hearing pursuant to section 30-2630.01.

Source:Laws 1974, LB 354, § 252, UPC § 5-405; Laws 1978, LB 650, § 39; Laws 1993, LB 782, § 15; Laws 1997, LB 466, § 15.
30-2635. Protective proceedings; request for notice; interested person.

Any interested person who desires to be notified before any order is made in a protective proceeding may file with the registrar a request for notice subsequent to payment of any fee required by statute or court rule. The clerk shall mail a copy of the demand to the conservator if one has been appointed. A request is not effective unless it contains a statement showing the interest of the person making it and his address, or that of his attorney, and is effective only as to matters occurring after the filing. Any governmental agency paying or planning to pay benefits to the person to be protected is an interested person in protective proceedings.

Source:Laws 1974, LB 354, § 253, UPC § 5-406.
30-2636. Procedure concerning hearing and order on original petition.

(a) Upon receipt of a petition for appointment of a conservator or other protective order because of minority, the court shall set a date for hearing on the matters alleged in the petition. If, at any time in the proceeding, the court determines that the interests of the minor are or may be inadequately represented, the court may appoint an attorney to represent the minor, giving consideration to the choice of the minor if he or she is fourteen years of age or older. A lawyer appointed by the court to represent a minor as provided in sections 30-4201 to 30-4210 has the powers and duties of a guardian ad litem.

(b) Upon receipt of a petition for appointment of a conservator or other protective order for reasons other than minority, the court shall set a date for hearing. Unless the person to be protected has counsel of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding. The court may appoint a guardian ad litem as provided in sections 30-4201 to 30-4210 to advocate for the best interests of the person to be protected. If the alleged disability is mental illness, mental deficiency, physical illness or disability, chronic use of drugs, or chronic intoxication, the court may direct that the person to be protected be examined by a physician designated by the court, preferably a physician who is not connected with any institution in which the person is a patient or is detained. The court may send a visitor to interview the person to be protected. The visitor may be a guardian ad litem or an officer or employee of the court.

(c) After hearing, upon finding that clear and convincing evidence exists for the appointment of a conservator or other protective order, the court shall make an appointment or other appropriate protective order.

Source:Laws 1974, LB 354, § 254, UPC § 5-407; Laws 1978, LB 650, § 23; Laws 1993, LB 782, § 16; Laws 2016, LB934, § 27.
30-2637. Permissible court orders.

The court has the following powers which may be exercised directly or through a conservator with respect to the estate and affairs of protected persons:

(1) While a petition for appointment of a conservator or other protective order is pending and after preliminary hearing and without notice to others, the court has power to preserve and apply the property of the person to be protected as may be required for his or her benefit or the benefit of his or her dependents.

(2) After hearing and upon determining that a basis for an appointment or other protective order exists with respect to a minor without other disability, the court has all those powers over the estate and affairs of the minor which are or might be necessary for the best interests of the minor, the minor's family, and members of the minor's household.

(3) After hearing and upon determining by clear and convincing evidence that a basis for an appointment or other protective order exists with respect to a person for reasons other than minority, the court has, for the benefit of the person and members of his or her household, all the powers over his or her estate and affairs which he or she could exercise if present and not under disability except the power to make a will. These powers include, but are not limited to, power to make gifts, to convey or release his or her contingent and expectant interests in property including marital property rights and any right of survivorship incident to joint tenancy or tenancy by the entirety, to exercise or release his or her powers as trustee, personal representative, custodian for minors, conservator, or donee of a power of appointment, to enter into contracts, to create revocable or irrevocable trusts of property of the estate which may extend beyond his or her disability or life, to exercise or release his or her powers as settlor of a revocable trust as provided in subsection (f) of section 30-3854, to exercise options of the disabled person to purchase securities or other property, to exercise his or her rights to elect options and change beneficiaries under insurance and annuity policies and to surrender the policies for their cash value, to exercise his or her right to an elective share in the estate of his or her deceased spouse, and to renounce any interest by testate or intestate succession or by inter vivos transfer.

(4) The court may exercise or direct the exercise of its authority to exercise or release powers of appointment of which the protected person is donee, to renounce interests, to make gifts in trust or otherwise exceeding twenty percent of any year's income of the estate, or to change beneficiaries under insurance and annuity policies, only if satisfied, after notice and hearing, that it is in the best interests of the protected person, and that he or she either is incapable of consenting or has consented to the proposed exercise of power.

(5) An order made pursuant to this section determining by clear and convincing evidence that a basis for appointment of a conservator or other protective order exists has no effect on the capacity of the protected person to make a will.

Source:Laws 1974, LB 354, § 255, UPC § 5-408; Laws 1993, LB 782, § 17; Laws 1997, LB 466, § 16; Laws 2003, LB 130, § 131.

Annotations

30-2638. Protective arrangements and single transactions authorized.

(a) If it is established in a proper proceeding that a basis exists as described in section 30-2630 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct or ratify any transaction necessary or desirable to achieve any security, service, or care arrangement meeting the foreseeable needs of the protected person. Protective arrangements include, but are not limited to, payment, delivery, deposit or retention of funds or property, sale, mortgage, lease or other transfer of property, entry into an annuity contract, a contract for life care, a deposit contract, a contract for training and education, or addition to or establishment of a suitable trust.

(b) When it has been established in a proper proceeding that a basis exists as described in section 30-2630 for affecting the property and affairs of a person, the court, without appointing a conservator, may authorize, direct or ratify any contract, trust or other transaction relating to the protected person's financial affairs or involving his estate if the court determines that the transaction is in the best interests of the protected person.

(c) Before approving a protective arrangement or other transaction under this section, the court shall consider the interests of creditors and dependents of the protected person and, in view of his disability, whether the protected person needs the continuing protection of a conservator. The court may appoint a special conservator to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the court of all matters done pursuant to the order of appointment.

Source:Laws 1974, LB 354, § 256, UPC § 5-409.
30-2639. Who may be appointed conservator; priorities.

(a) The court may appoint an individual, a corporation with general power to serve as trustee, or the Public Guardian as conservator of the estate of a protected person, except that it shall be unlawful for any agency providing residential care in an institution or community-based program or any owner, part owner, manager, administrator, employee, or spouse of an owner, part owner, manager, administrator, or employee of any nursing home, room and board home, assisted-living facility, or institution engaged in the care, treatment, or housing of any person physically or mentally handicapped, infirm, or aged to be appointed conservator of any such person residing, being under care, receiving treatment, or being housed in any such home, facility, or institution within the State of Nebraska. Nothing in this subsection shall prevent the spouse, adult child, parent, or other relative of the person in need of protection from being appointed conservator.

(b) Persons who are not disqualified under subsection (a) of this section and who exhibit the ability to exercise the powers to be assigned by the court have priority for appointment as conservator in the following order:

(1) A person nominated most recently by one of the following methods:

(i) A person nominated by the protected person in a power of attorney or durable power of attorney;

(ii) A person acting under a power of attorney or durable power of attorney; or

(iii) A person nominated by an attorney in fact who is given power to nominate in a power of attorney or a durable power of attorney executed by the protected person;

(2) A conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;

(3) An individual or corporation nominated by the protected person if he or she is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;

(4) The spouse of the protected person;

(5) An adult child of the protected person;

(6) A parent of the protected person or a person nominated by the will of a deceased parent;

(7) Any relative of the protected person with whom he or she has resided for more than six months prior to the filing of the petition;

(8) A person nominated by the person who is caring for him or her or paying benefits to him or her;

(9) The Public Guardian.

(c) When appointing a conservator, the court shall take into consideration the expressed wishes of the person to be protected. A person having priority listed in subdivision (2), (4), (5), (6), or (7) of subsection (b) of this section may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it deems best qualified of those willing to serve. The court, acting in the best interest of the protected person, may pass over a person having priority and appoint a person having lower priority or no priority.

(d) In its order of appointment, unless waived by the court, the court shall require any person appointed as conservator to successfully complete within three months of such appointment a training program approved by the Public Guardian. If the person appointed as conservator does not complete the training program, the court shall issue an order to show cause why such person should not be removed as conservator.

Source:Laws 1974, LB 354, § 257, UPC § 5-410; Laws 1985, LB 292, § 3; Laws 1993, LB 782, § 18; Laws 1997, LB 466, § 17; Laws 1997, LB 608, § 2; Laws 2014, LB920, § 25.

Cross References

Annotations

30-2640. Bond.

For estates with a net value of more than ten thousand dollars, the bond for a conservator shall be in the amount of the aggregate capital value of the personal property of the estate in the conservator's control plus one year's estimated income from all sources minus the value of securities and other assets deposited under arrangements requiring an order of the court for their removal. The bond of the conservator shall be conditioned upon the faithful discharge of all duties of the trust according to law, with sureties as the court shall specify. The court, in lieu of sureties on a bond, may accept other security for the performance of the bond, including a pledge of securities or a mortgage of land owned by the conservator. For good cause shown, the court may eliminate the requirement of a bond or decrease or increase the required amount of any such bond previously furnished. The court shall not require a bond if the protected person executed a written, valid power of attorney that specifically nominates a guardian or conservator and specifically does not require a bond. The court shall consider as one of the factors of good cause, when determining whether a bond should be required and the amount thereof, the protected person's choice of any attorney in fact or alternative attorney in fact. No bond shall be required of any financial institution, as that term is defined in section 8-101.03, or any officer, director, employee, or agent of the financial institution serving as a conservator, or any trust company serving as a conservator. The Public Guardian shall not be required to post bond.

Source:Laws 1974, LB 354, § 258, UPC § 5-411; Laws 1985, LB 292, § 4; Laws 2011, LB157, § 43; Laws 2014, LB920, § 26; Laws 2017, LB140, § 152.
30-2641. Terms and requirements of bonds.

(a) The following requirements and provisions apply to any bond required under section 30-2640:

(1) Unless otherwise provided by the terms of the approved bond, sureties are jointly and severally liable with the conservator and with each other;

(2) By executing an approved bond of a conservator, the surety consents to the jurisdiction of the court which issued letters to the primary obligor in any proceeding pertaining to the fiduciary duties of the conservator and naming the surety as a party defendant. Notice of any proceeding shall be delivered to the surety or mailed to him by registered or certified mail at his address as listed with the court where the bond is filed and to his address as then known to the petitioner;

(3) On petition of a successor conservator or any interested person, a proceeding may be initiated against a surety for breach of the obligation of the bond of the conservator;

(4) The bond of the conservator is not void after the first recovery but may be proceeded against from time to time until the whole penalty is exhausted.

(b) No proceeding may be commenced against the surety on any matter as to which an action or proceeding against the primary obligor is barred by adjudication or limitation.

Source:Laws 1974, LB 354, § 259, UPC § 5-412.

Annotations

30-2642. Acceptance of appointment; consent to jurisdiction.

By accepting appointment, a conservator submits personally to the jurisdiction of the court in any proceeding relating to the estate that may be instituted by any interested person. Notice of any proceeding shall be delivered to the conservator, or mailed to him by registered or certified mail at his address as listed in the petition for appointment or as thereafter reported to the court and to his address as then known to the petitioner.

Source:Laws 1974, LB 354, § 260, UPC § 5-413.
30-2643. Attorney, guardian ad litem, physician, conservator, special conservator, and visitor; compensation and expenses; in forma pauperis proceedings; frivolous actions.

The reasonable fees and costs of an attorney, a guardian ad litem, a physician, a conservator, a special conservator, and a visitor appointed by the court for the person to be protected shall be allowed, disallowed, or adjusted by the court and may be paid from the estate of the protected person if the protected person possesses an estate or, if not, shall be paid by the county in which the proceedings are brought or by the petitioner as costs of the action. An action under sections 30-2601 to 30-2661 may be initiated or defended in forma pauperis in accordance with sections 25-2301 to 25-2310. The court may assess attorney's fees and costs against the petitioner upon a showing that the action was frivolous in accordance with sections 25-824 to 25-824.03.

Source:Laws 1974, LB 354, § 261, UPC § 5-414; Laws 1993, LB 782, § 19; Laws 1999, LB 689, § 15.

Annotations

30-2644. Death, resignation, or removal of conservator.

The court may remove a conservator for good cause, upon notice and hearing, or accept the resignation of a conservator. After his death, resignation or removal, the court may appoint another conservator on such notice as the court may direct. A conservator so appointed succeeds to the title and powers of his predecessor.

Source:Laws 1974, LB 354, § 262, UPC § 5-415.

Annotations

30-2645. Petitions for orders subsequent to appointment.

(a) Any person interested in the welfare of a person for whom a conservator has been appointed may file a petition in the appointing court for an order (1) requiring bond or security or additional bond or security, or reducing bond, (2) requiring an accounting for the administration of the trust, (3) directing distribution, (4) removing the conservator and appointing a temporary or successor conservator, or (5) granting other appropriate relief.

(b) A conservator may petition the appointing court for instructions concerning his fiduciary responsibility.

(c) Upon notice and hearing, the court may give appropriate instructions or make any appropriate order.

Source:Laws 1974, LB 354, § 263, UPC § 5-416.

Annotations

30-2646. General duty of conservator.

In the exercise of his or her powers, a conservator is to act as a fiduciary and shall comply with the prudent investor rule set forth in sections 30-3883 to 30-3889.

Source:Laws 1974, LB 354, § 264, UPC § 5-417; Laws 1997, LB 54, § 15; Laws 2003, LB 130, § 132.
30-2647. Conservator; duties; inventory and records.

Within thirty days after appointment, every conservator shall prepare and file with the appointing court a complete inventory of the estate of the protected person together with the conservator's oath or affirmation that the inventory is complete and accurate so far as he or she is informed. The conservator shall mail a copy thereof by first-class mail to the protected person, if the protected person can be located and has attained the age of fourteen years, and to all other interested persons as defined in section 30-2601. The conservator shall file with the court a certificate of mailing showing that copies were sent to all interested persons by first-class mail along with a form to send back to the court that indicates if such person wants to continue receiving notifications about the proceedings. Every conservator shall file an updated inventory with the annual accounting required under section 30-2648. The conservator shall keep suitable records of his or her administration and exhibit the same on request of any interested person.

Source:Laws 1974, LB 354, § 265, UPC § 5-418; Laws 2011, LB157, § 44; Laws 2013, LB172, § 3.

Annotations

30-2648. Accounts.

Every conservator must account to the court for his or her administration of the trust annually, upon his or her resignation or removal, and at such other times as the court may direct. On termination of the protected person's minority or disability, a conservator may account to the court, or the conservator may account to the former protected person or the former protected person's personal representative. Subject to appeal or vacation within the time permitted, an order, made upon notice and hearing, allowing an intermediate account of a conservator, adjudicates as to the conservator's liabilities concerning the matters considered in connection therewith; and an order, made upon notice and hearing, allowing a final account adjudicates as to all previously unsettled liabilities of the conservator to the protected person or the protected person's successors relating to the conservatorship. In connection with any account, the court may require a conservator to submit to a physical check of the estate in his or her control, to be made in any manner the court may specify.

Source:Laws 1974, LB 354, § 266, UPC § 5-419; Laws 2011, LB157, § 45.

Annotations

30-2649. Conservators; title by appointment.

The appointment of a conservator vests in him title as trustee to all property of the protected person, presently held or thereafter acquired, including title to any property theretofore held for the protected person by custodians or attorneys in fact. The appointment of a conservator is not a transfer or alienation within the meaning of general provisions of any federal or state statute or regulation, insurance policy, pension plan, contract, will or trust instrument, imposing restrictions upon or penalties for transfer or alienation by the protected person of his rights or interest, but this section does not restrict the ability of persons to make specific provisions by contract or dispositive instrument relating to a conservator.

Source:Laws 1974, LB 354, § 267, UPC § 5-420.
30-2650. Recording of conservator's letters.

Letters of conservatorship are evidence of transfer of all assets of a protected person to the conservator. An order terminating a conservatorship is evidence of transfer of all assets of the estate from the conservator to the protected person, or his successors. Subject to the requirements of general statutes governing the filing or recordation of documents of title to land or other property, letters of conservatorship, and orders terminating conservatorships, may be filed or recorded to give record notice of title as between the conservator and the protected person.

Source:Laws 1974, LB 354, § 268, UPC § 5-421.
30-2651. Encumbrance or transaction involving conflict of interest; voidable; exceptions.

Any sale or encumbrance to a conservator, his spouse, agent or attorney, or any corporation or trust in which he has a substantial beneficial interest, or any transaction which is affected by a substantial conflict of interest is voidable unless the transaction is approved by the court after notice to interested persons and others as directed by the court.

Source:Laws 1974, LB 354, § 269, UPC § 5-422.
30-2652. Persons dealing with conservators; protection.

A person who in good faith either assists a conservator or deals with him for value in any transaction, other than those requiring a court order as provided in section 30-2637, is protected as if the conservator properly exercised the power. The fact that a person knowingly deals with a conservator does not alone require the person to inquire into the existence of a power or the propriety of its exercise, except that restrictions on powers of conservators which are endorsed on letters as provided in section 30-2655 are effective as to third persons. A person is not bound to see to the proper application of estate assets paid or delivered to a conservator. The protection here expressed extends to instances in which some procedural irregularity or jurisdictional defect occurred in proceedings leading to the issuance of letters. The protection here expressed is not by substitution for that provided by comparable provisions of the laws relating to commercial transactions and laws simplifying transfers of securities by fiduciaries.

Source:Laws 1974, LB 354, § 270, UPC § 5-423.
30-2653. Powers of conservator in administration.

(a) A conservator has all of the powers conferred herein and any additional powers conferred by law on trustees in this state. In addition, a conservator of the estate of a minor, as to whom no one has parental rights, has the duties and powers of a guardian of a minor described in section 30-2613 until the minor attains his majority, but the parental rights so conferred on a conservator do not preclude appointment of a guardian as provided by part 2.

(b) A conservator has power without court authorization or confirmation, to invest and reinvest funds of the estate as would a trustee.

(c) A conservator, acting reasonably in efforts to accomplish the purpose for which he was appointed, may act without court authorization or confirmation to

(1) collect, hold and retain assets of the estate including land in another state, until, in his judgment, disposition of the assets should be made, and the assets may be retained even though they include an asset in which he is personally interested;

(2) receive additions to the estate;

(3) continue or participate in the operation of any business or other enterprise;

(4) acquire an undivided interest in an estate asset in which the conservator, in any fiduciary capacity, holds an undivided interest;

(5) invest and reinvest estate assets in accordance with subsection (b);

(6) deposit estate funds in a bank including a bank operated by the conservator;

(7) acquire or dispose of an estate asset including land in another state for cash or on credit, at public or private sale; and to manage, develop, improve, exchange, partition, change the character of, or abandon an estate asset;

(8) make ordinary or extraordinary repairs or alterations in buildings or other structures, to demolish any improvements, to raze existing or erect new party walls or buildings;

(9) subdivide, develop, or dedicate land to public use; to make or obtain the vacation of plats and adjust boundaries; to adjust differences in valuation on exchange or to partition by giving or receiving considerations; and to dedicate easements to public use without consideration;

(10) enter for any purpose into a lease as lessor or lessee with or without option to purchase or renew for a term within or extending beyond the term of the conservatorship;

(11) enter into a lease or arrangement for exploration and removal of minerals or other natural resources or enter into a pooling or unitization agreement;

(12) grant an option involving disposition of an estate asset, to take an option for the acquisition of any asset;

(13) vote a security, in person or by general or limited proxy;

(14) pay calls, assessments, and any other sums chargeable or accruing against or on account of securities;

(15) sell or exercise stock subscription or conversion rights; to consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise;

(16) hold a security in the name of a nominee or in other form without disclosure of the conservatorship so that title to the security may pass by delivery, but the conservator is liable for any act of the nominee in connection with the stock so held;

(17) insure the assets of the estate against damage or loss, and the conservator against liability with respect to third persons;

(18) borrow money to be repaid from estate assets or otherwise; to advance money for the protection of the estate or the protected person, and for all expenses, losses, and liability sustained in the administration of the estate or because of the holding or ownership of any estate assets, and the conservator has a lien on the estate as against the protected person for advances so made;

(19) pay or contest any claim; to settle a claim by or against the estate or the protected person, except a wrongful death, tort, or similar claim, by compromise, arbitration, or otherwise; and to release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible;

(20) pay taxes, assessments, compensation of the conservator, and other expenses incurred in the collection, care, administration and protection of the estate;

(21) allocate items of income or expense to either estate income or principal, as provided by law, including creation of reserves out of income for depreciation, obsolescence, or amortization, or for depletion in mineral or timber properties;

(22) pay any sum distributable to a protected person or his dependent without liability to the conservator, by paying the sum to the distributee or by paying the sum for the use of the distributee either to his guardian or, if none, to a relative or other person with custody of his person;

(23) employ persons, including attorneys, auditors, investment advisors, or agents, even though they are associated with the conservator, to advise or assist him in the performance of his administrative duties; to act upon their recommendation without independent investigation; and instead of acting personally, to employ one or more agents to perform any act of administration, whether or not discretionary;

(24) prosecute or defend actions, claims or proceedings in any jurisdiction for the protection of estate assets and of the conservator in the performance of his duties; and

(25) execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the conservator.

(d) A conservator with court approval may settle a wrongful death, tort, or similar claim by or against the estate or the protected person by compromise, arbitration, or otherwise, and release, in whole or in part, any claim belonging to the estate to the extent that the claim is uncollectible.

Source:Laws 1974, LB 354, § 271, UPC § 5-424.

Annotations

30-2654. Distributive duties and powers of conservator.

(a) A conservator may expend or distribute income or principal of the estate without court authorization or confirmation for the support, education, care or benefit of the protected person, except as provided in section 30-2613 if the protected person be a minor, and his dependents in accordance with the following principles:

(1) The conservator is to consider recommendations relating to the appropriate standard of support, education and benefit for the protected person made by a parent or guardian, if any. He may not be surcharged for sums paid to persons or organizations actually furnishing support, education or care to the protected person pursuant to the recommendations of a parent or guardian of the protected person unless he knows that the parent or guardian is deriving personal financial benefit therefrom, including relief from any personal duty of support, or unless the recommendations are clearly not in the best interests of the protected person.

(2) The conservator is to expend or distribute sums reasonably necessary for the support, education, care or benefit of the protected person with due regard to (i) the size of the estate, the probable duration of the conservatorship and the likelihood that the protected person, at some future time, may be fully able to manage his affairs and the estate which has been conserved for him; (ii) the accustomed standard of living of the protected person and members of his household; (iii) other funds or sources used for the support of the protected person.

(3) The conservator may expend funds of the estate for the support of persons legally dependent on the protected person and others who are members of the protected person's household who are unable to support themselves, and who are in need of support.

(4) Funds expended under this subsection may be paid by the conservator to any person, including the protected person, to reimburse for expenditures which the conservator might have made, or in advance for services to be rendered to the protected person when it is reasonable to expect that they will be performed and where advance payments are customary or reasonably necessary under the circumstances.

(b) If the estate is ample to provide for the purposes implicit in the distributions authorized by the preceding subsections, a conservator for a protected person other than a minor has power to make gifts to charity and other objects as the protected person might have been expected to make, in amounts which do not exceed in total for any year twenty percent of the income from the estate upon court approval.

(c) When a minor who has not been adjudged disabled under section 30-2630(2) attains his majority, his conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.

(d) When the conservator is satisfied that a protected person's disability (other than minority) has ceased, the conservator, after meeting all prior claims and expenses of administration, shall pay over and distribute all funds and properties to the former protected person as soon as possible.

(e) If a protected person dies, the conservator shall deliver to the court for safekeeping any will of the deceased protected person which may have come into his possession, inform the executor or a beneficiary named therein that he has done so, and retain the estate for delivery to a duly appointed personal representative of the decedent or other persons entitled thereto. If after forty days from the death of the protected person no other person has been appointed personal representative and no application or petition for appointment is before the court, the conservator may apply to exercise the powers and duties of a personal representative so that he may proceed to administer and distribute the decedent's estate without additional or further appointment. Upon application for an order granting the powers of a personal representative to a conservator, after notice to any person demanding notice under section 30-2413 and to any person nominated executor in any will of which the applicant is aware, the court may order the conferral of the power upon determining that there is no objection, and endorse the letters of the conservator to note that the formerly protected person is deceased and that the conservator has acquired all of the powers and duties of a personal representative. The making and entry of an order under this section shall have the effect of an order of appointment of a personal representative as provided in section 30-2421 and parts 6 to 10 of Article 24 except that estate in the name of the conservator, after administration, may be distributed to the decedent's successors without prior retransfer to the conservator as personal representative.

Source:Laws 1974, LB 354, § 272, UPC § 5-425.

Annotations

30-2655. Limitation of powers of conservator.

(a) The court may, at the time of appointment or later, limit the powers of a conservator otherwise conferred by sections 30-2653 and 30-2654, or previously conferred by the court, and may at any time relieve the conservator of any limitation. If the court limits any power conferred on the conservator by section 30-2653 or 30-2654, the limitation shall be endorsed upon the conservator's letters of appointment.

(b) A conservator shall not change a protected person's place of abode to a location outside of the State of Nebraska without court permission.

Source:Laws 1974, LB 354, § 273, UPC § 5-426; Laws 2011, LB157, § 46.
30-2656. Preservation of estate plan.

In investing the estate, and in selecting assets of the estate for distribution under subsections (a) and (b) of section 30-2654, in utilizing powers of revocation or withdrawal available for the support of the protected person, and exercisable by the conservator or the court, the conservator and the court should take into account any known estate plan of the protected person, including his will, any revocable trust of which he is settlor, and any contract, transfer or joint ownership arrangement with provisions for payment or transfer of benefits or interests at his death to another or others which he may have originated. The conservator may examine the will of the protected person.

Source:Laws 1974, LB 354, § 274, UPC § 5-427.
30-2657. Claims against protected person; enforcement.

(a) A conservator must pay from the estate all just claims against the estate and against the protected person arising before or after the conservatorship upon their presentation and allowance. A claim may be presented by either of the following methods: (1) the claimant may deliver or mail to the conservator a written statement of the claim indicating its basis, the name and address of the claimant and the amount claimed; (2) the claimant may file a written statement of the claim, in the form prescribed by rule, with the clerk of the court and deliver or mail a copy of the statement to the conservator. A claim is deemed presented on the first to occur of receipt of the written statement of claim by the conservator, or the filing of the claim with the court. A presented claim is allowed if it is not disallowed by written statement mailed by the conservator to the claimant within sixty days after its presentation. The presentation of a claim tolls any statute of limitation relating to the claim until thirty days after its disallowance.

(b) A claimant whose claim has not been paid may petition the court for determination of his claim at any time before it is barred by the applicable statute of limitation and, upon due proof, procure an order for its allowance and payment from the estate. If a proceeding is pending against a protected person at the time of appointment of a conservator or is initiated against the protected person thereafter, the moving party must give notice of the proceeding to the conservator if the outcome is to constitute a claim against the estate.

(c) If it appears that the estate in conservatorship is likely to be exhausted before all existing claims are paid, preference is to be given to prior claims for the care, maintenance and education of the protected person or his dependents and existing claims for expenses of administration.

Source:Laws 1974, LB 354, § 275, UPC § 5-428.
30-2658. Individual liability of conservator.

(a) Unless otherwise provided in the contract, a conservator is not individually liable on a contract properly entered into in his fiduciary capacity in the course of administration of the estate unless he fails to reveal his representative capacity and identify the estate in the contract.

(b) The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault.

(c) Claims based on contracts entered into by a conservator in his fiduciary capacity, on obligations arising from ownership or control of the estate, or on torts committed in the course of administration of the estate may be asserted against the estate by proceeding against the conservator in his fiduciary capacity, whether or not the conservator is individually liable therefor.

(d) Any question of liability between the estate and the conservator individually may be determined in a proceeding for accounting, surcharge, or indemnification, or other appropriate proceeding or action.

Source:Laws 1974, LB 354, § 276, UPC § 5-429.
30-2659. Termination of proceeding.

The protected person, his personal representative, the conservator or any other interested person may petition the court to terminate the conservatorship. A protected person seeking termination is entitled to the same rights and procedures as in an original proceeding for a protective order. The court, upon determining after notice and hearing that the minority or disability of the protected person has ceased, may terminate the conservatorship. Upon termination, title to assets of the estate passes to the former protected person or to his successors subject to provision in the order for expenses of administration or to conveyances from the conservator to the former protected person or his successors, to evidence the transfer.

Source:Laws 1974, LB 354, § 277, UPC § 5-430.
30-2660. Payment of debt and delivery of property to foreign conservator without local proceedings.

Any person indebted to a protected person, or having possession of property or of an instrument evidencing a debt, stock, or chose in action belonging to a protected person may pay or deliver to a conservator, guardian of the estate or other like fiduciary appointed by a court of the state of residence of the protected person, upon being presented with proof of his appointment and an affidavit made by him or on his behalf stating:

(1) that no protective proceeding relating to the protected person is pending in this state; and

(2) that the foreign conservator is entitled to payment or to receive delivery. If the person to whom the affidavit is presented is not aware of any protective proceeding pending in this state, payment or delivery in response to the demand and affidavit discharges the debtor or possessor.

Source:Laws 1974, LB 354, § 278, UPC § 5-431.
30-2661. Domiciliary foreign conservator may file; when; powers.

If no local conservator has been appointed and no petition in a protective proceeding is pending in this state, a domiciliary foreign conservator may file, with a court in this state in a county in which property belonging to the protected person is located, authenticated copies of his appointment and of any official bond he has given. Thereafter, he may exercise as to assets in this state all powers of a local conservator and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally.

Source:Laws 1974, LB 354, § 279.