§ 30-2627 — Who may be guardian; priorities; bond

Nebraska § 30-2627

• Jurisdiction: Nebraska
• Ch. 30: Decedents' Estates; Protection of Persons and Property

Text

(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.

Legislative History

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: Nebraska Mental Health Commitment Act, see section 71-901. Training program, curricula, see section 30-2601.01. Annotations: Subdivision (b)(4) of this section evidences a legislative preference that a parent of an incapacitated person be appointed guardian over a person with no priority. In re Guardianship of Benjamin E., 289 Neb. 693, 856 N.W.2d 447 (2014). Subsection (c) of this section does not require a specific finding that it is in the best interest of the incapacitated person to pass over a person with priority. In re Guardianship of Benjamin E., 289 Neb. 693, 856 N.W.2d 447 (2014). When two persons have equal priority, the Nebraska Probate Code directs the court to appoint the person "best qualified to serve" as guardian. In re Guardianship & Conservatorship of Karin P., 271 Neb. 917, 716 N.W.2d 681 (2006). Subsection (a) of this section provides that any competent person may be appointed guardian of a person alleged to be incapacitated and that nothing in this subsection prevents spouses, adult children, parents, or relatives of the person alleged to be incapacitated from serving in that capacity. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018). Subsection (b) of this section provides that persons who are not disqualified by subsection (a) of this section and who exhibit the ability to exercise the powers to be assigned by the court have priority in the order listed. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018). Subsection (b)(4) of this section allows a parent to serve as a guardian. In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).