§ 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.

Legislative History

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: Under subsection (3) of this section, the court may take action on behalf of a protected person or the court may direct a conservator to take those actions if the court determines by clear and convincing evidence that such actions are in the best interests of the protected person. Subsection (3) of this section gives the court the power to exercise all powers over the estate of a settlor which the settlor could exercise if he or she were not under disability, except the power to make a will. In re Guardianship & Conservatorship of Garcia, 262 Neb. 205, 631 N.W.2d 464 (2001). Adjudication of what constitutes best interests must be had with reference to existing rules of law. In re Estate of Carlson, 214 Neb. 453, 334 N.W.2d 437 (1983).