Guardianships & Conservatorships

If an incapacitated individual does not have powers of attorney in place or will not cooperate with their POA, the local court may appoint a Guardian or Conservator to assist and protect the individual.

Guardianship

An interested party may petition the court to appoint a Guardian to assist an individual whom doctors find unable to manage their health or daily needs if no durable Healthcare Power of Attorney is in place.  Family, friends or community volunteers may serve as the Guardian.  The Guardian must work within the individual’s resources to provide food, clothing, shelter and healthcare.  A Guardian must report annually to the court on the individual’s condition and progress.

Conservatorship

An interested party may petition the local court to appoint a Conservator to assist an individual whom doctors find unable to manage their property and finances. Family, friends or community volunteers may serve as a Conservator.  The Conservator will use the individual’s assets to pay for medical care and support and may also apply for government benefits to assist with these costs.  The Conservator must file a detailed annual accounting report for review by the court.

The Guardian and Conservatormay be the same person or two different people.  If they are different, they must be able to work closely together.  Call the Office of Public Guardian at 402-889-3272 or contact an elder law attorney (page 48) for more information.

Representative & Protective Payee

Representative Payee

A Representative Payee is a person appointed by the Social Security Administration to handle all of an individual’s Social Security affairs. That person must file an application with the Social Security office and have medical verification that the person is incapacitated.

Protective Payee

A Protective Payee is a person appointed by the Nebraska or Iowa Department of Social Services to handle the protected person’s state benefits.

Probate, Wills and Trusts

Powers of Attorney, Guardianships and Conservatorships lose their authority to act when the individual dies.  After death, the estate will often go into probate and the assets of the deceased individual are controlled primarily by his or her Will or Trust.

Probate

Probate is a legal process that takes place after an individual’s death. Probate courts admit Wills, appoint personal representatives, oversee the accounting and distribution of the estate and preside over any Will contests that may be filed.  The probate process can be short and informal or longer and overseen by the court depending on the size of the estate.

Will

A Will is a legal document that appoints someone to administer their estate, a personal representative, and says to whom assets should go.  If an individual dies without a Will, state statutes determine the distribution of assets.  Someone must still administer the estate.  A Will must be written, signed and witnessed by at least two individuals as required by state law.

Trust

A Trust is a legal entity created by the individual to hold title to his or her assets.  All assets are transferred to the Trust.  A trustee may manage assets during the individual’s lifetime in case of illness. When the individual dies, the Trust continues to own the assets and the beneficiaries bypass the probate process in obtaining assets.  If an individual creates a Trust, he or she typically will still create a brief accompanying Will.  An attorney can provide advice as to when a Will alone is adequate and when a Trust might have advantages.