Guardianship Of An Incapacitated Person

Under Nebraska law, a guardian may be appointed over an incapacitated person. An incapacitated person is any adult who is impaired by reason of mental illness, mental deficiency, physical illness, disability, chronic use of drugs, chronic intoxication, or other cause to the extent that the person lacks sufficient understanding or capacity to make responsible decisions concerning his or her person.

When considering who to appoint as guardian, the court will first look to the following people in the order listed below:
1. A person nominated or acting under a previous power of attorney;
2. The spouse of the ward;
3. An adult child of the ward;
4. A parent of the ward, or someone nominated in a parent's will;
5. Any relative of the ward that the ward was living with six months prior to the filing of the petition; or
6. A person nominated by the person who is caring for him or her or paying benefits to him or her.

If none of the above-mentioned individuals are available or if the court determines none of them are fit to be guardian, the court may appoint any competent person or institution.

The court may appoint a guardian ad litem or attorney to advocate for the best interests of the person alleged to be incapacitated. The court may also appoint a physician to examine the alleged incapacitated person and file a report with the court. In addition, the court may appoint a visitor and direct such visitor to conduct an evaluation of the allegations of incapacity and interview the person seeking appointment as guardian. The visitor should be trained in law, nursing, social work, mental health, mental retardation, gerontology, or developmental disabilities. They should also be an officer, employee, or special appointee of the court with no personal interest in the proceedings. Any owner of a care facility in which the ward is being housed may not be appointed as a visitor. The court will appoint the visitor who has the expertise to most appropriately evaluate the needs of the person who is allegedly incapacitated.

A court appointed guardian for an adult has only those powers designated by the court in the letters of guardianship. One of these powers may include the power to decide where the ward is to live after the guardian makes every reasonable effort to insure that the placement is the least restrictive alternative. The guardian may also have the power to make arrangements for the care, comfort, maintenance, training and education of the ward; take responsible care of the ward's clothing, furniture, vehicles, and other personal effects; and give consent and approval for medical or other professional care, counseling, treatment or service. If no conservator has been appointed over the ward, the guardian may institute proceedings to enforce support rights of the ward (including alimony or child support), receive money and personal property for the ward, and may consent to the release of financial, medical, and other confidential records. If the guardian receives money on behalf of the ward, the guardian only has the authority to apply such money to the support, care, and education of the ward.

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