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Understanding Guardianship

As Emily Perl Kingsley analogized in her essay, Welcome to Holland, raising a disabled child means, “you must go out and buy new guide books. And you must learn a whole new language. And you will meet a whole new group of people you would never have met. It’s just a different place.”

When the child turns age 19 in Nebraska, probate court is a new language, experience, and group of people parents must navigate. Probate court covers guardianships and conservatorships for an “incapacitated” person: someone who cannot—by reason of mental illness or deficiency, physical illness or disability, or other cause—make “responsible decisions” for themselves. Decisions such as where to live; obtaining medical care; giving necessary consents, approvals, or releases; obtaining training or education; applying for benefits; participating in legal proceedings; entering into contracts; and managing money, bills, and property.

Parents may make all decisions for their disabled minor child, however at age 19 and without a guardianship in place, parents may no longer make those decisions for their disabled adult child. To gain guardianship of a disabled adult child, parents file a petition for guardianship—preferably before the child turns age 19. They’ll need key information for their attorney:
  1. A willing and responsible person to serve as guardian—a parent or other trusted adult. 
  2. The guardian undergoes background and credit checks. 
  3. The guardian completes guardianship training through the State of Nebraska.
  4. A list of “interested persons” in the guardianship—estranged parents, siblings, children, spouses, or anyone with a financial interest. 
  5. A list of governmental agencies providing benefits for the disabled adult child. 
  6. Medical records and a letter from a medical professional saying that the disabled adult child is unable to make their own responsible decisions. 
  7. An inventory of the disabled adult child’s assets, current statements of all accounts and investments, and a valuation of each. Significant assets may require a conservatorship.
  8. A durable power of attorney or health care power of attorney or a living will, if any. 
  9. Whether the guardian is indebted to or a creditor of the disabled adult child. 
An attorney will then prepare the petition to appoint a guardian in the probate court. Uncontested proceedings take three to six months. The guardian makes annual reports to the court, but more importantly, makes the necessary decisions for the benefit of the disabled adult child to ensure they are properly taken care of through their life’s journey.
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