Nursing Home facilities often serve residents who cannot make reasonable decisions about their own care or make payment arrangements. When this situation occurs, a court petition for appointment of a guardian or conservator for such an incapacitated individual may solve these problems.

A guardian makes responsible decisions for the care of an incapacitated person, such as where the person should reside, arranges for medical care, protects the individual’s personal effects, and obtains governmental benefits that the individual may be entitled . A conservator serves to make decisions regarding the individual’s property or income.

To obtain an appointment as guardian or conservator, an interested party must file a petition with the county court where the incapacitated person resides. The petition should state the reasons why the incapacitated person can’t make responsible decisions for his or her care. If an emergency exists, the interested party may ask that a temporary guardian or conservator be appointed for a 90 day period before a hearing can be held.

A hearing is then set by the county court judge for presentation of evidence of the incapacity of the individual and for the credentials of the potential guardian and conservator to be appointed. Priority for appointment is given to family members or someone previously nominated to serve.

Nebraska law states it is unlawful for any agency or any manager, owner, administrator, or employee of any nursing home, assisted living facility, or institution of persons that are physically or mentally handicapped, infirm, or aged to be appointed guardian of an incapacitated person that may be living in or receiving care in such a facility in the State of Nebraska. However nursing homes and assisted living facilities can move for the appointment of an independent guardian or conservator to assist with the needs of the resident.

Notice of the hearing must be given to the incapacitated person’s parents, spouse, and adult children. The court may appoint a separate attorney to represent the incapacitated person, may appoint a “visitor” for observation, and may request a medical examination to verify the incapacity. The incapacitated person is also entitled to receive notice of the hearing, be present at the hearing, and present evidence. Once the hearing is held, the court decides whether the appointment is the least restrictive alternative available for providing continuing care or supervision.

If the court orders the appointment, the appointed guardian and conservator must file an acceptance of the duties and powers of the appointment with the court that pledges he or she will comply with the law. The court may also require a bond or training for the appointed guardian and conservator. The guardian and conservator must make decisions that are in the best interests of the incapacitated person. Guardianships and conservators may be especially helpful if no family members exist or volunteer to arrange for the continued care of the resident at a facility.

When an incapacitated person is no longer able to care for themselves, the appointment of a guardian and conservator ensures that the person will be cared for and not fall through the cracks. If an incapacitated person is living at an assisted care facility, a guardian and conservator can ensure that the person stays in an environment that is consistent and safe.

Jocelyn W. Golden