Nebraska

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process


I. Designation of Standby Guardian

Nebraska lawmakers expressed concern for families whose parent is "chronically ill or near death" by creating a way for the court to appoint a standby guardian for the child. [Probate 30-2608( c)] While the new law does not provide a designation process tailored to standby guardianship, the general guardian law does permit a parent to designate a regular guardian in a will, which the court shall "take into consideration" [Probate 30-2608 (a)] (In fact, the general guardian law gives priority to a designation in a will over a guardian the court might otherwise select, if both parents are dead.) [Probate 30-2608(d); 30-2606]) It seems reasonable, therefore, that the court would permit a designation to be made for a standby guardian.

The law specifies three triggering events: death, mental incapacity, and physical debilitation plus consent. [Probate 30-2608( c)] An "incapacitated person" is defined as one who "lacks sufficient understanding or capacity to make or communicate responsible decisions." [Probate 30-2601(1)]

The parent and standby guardian would have concurrent authority to make decisions for the child, in that the appointment "does not suspend or terminate the parent's parental rights of custody to the minor." [Probate30-2608( c)] There is no description about how the parent and standby guardian would work that out. There is no provision for the parent to revoke the guardianship.




II. Agreement of the Non-Custodial Parent

A non-custodial parent would take precedent over a guardian, unless he consented, or "all parental rights of custody" had been "suspended by prior or current circumstances or prior court order." [Probate 30-2608( c)] There is a special provision for the natural non-custodial parent of a child born out of wedlock. There the court will give particular weight to the deceased parent's testamentary designation including "the natural parent's acknowledgment of paternity, payment of child support, and whether the natural parent is a fit, proper, and suitable custodial parent for the child." [Probate 30-2608(b)] [See Jones v. Uhing, 488 N.W.2d 366(1992) for parental unfitness factors]

Notice of the hearing must be given to the parent. [Probate 30-2611(a)(3)] Notice must be attempted by mail, personal service and/or publication in a newspaper. [Probate 30-2220] As abandonment is a concept recognized in Probate Court [Probate 30-2608 (a)], evidence of reasonable efforts might suffice if the parent cannot be located.





III. Role of the Standby Guardian

The parent and standby guardian have concurrent decision-making authority over the child. [Probate 30-2608( c)] Duties of a full guardian are explained. They include a mixture of personal and estate management: facilitating the child's education and social activities and authorizing professional care, treatment and advice. [Probate 30-2613] However, a standby guardian is a "limited" guardianship [Probate 30-2601(6)] in that it does not deprive a parent of custody, and is suspended until certain events or conditions occur. Those triggering events are, by law, death, mental incapacity, or physical debilitation plus consent. [Probate 30-2608 ( c)] The court can further limit the duties in the appointment order.

No duty to file confirming evidence of the triggering event, or time limits within which the standby guardian must act, are stated in the law. The implication is that the guardianship would begin at the moment of the event, as long as there was no living parent. [Probate 30-2608( c)]

The guardianship lasts until the child attains majority, or it is interrupted by some other event like adoption, marriage or death. A guardian's resignation must be approved by the court. [Probate 30-2614]. There is no provision for the parent to revoke the guardianship.





IV. Court Process

The court process begins when a petition for appointment of a standby guardian is filed. [Probate 30-2611]. There is no particular provision for designation of a standby guardian, but if such a writing exists, for example in a will or other attested document, this would be the time to file it. Notices of a court hearing are then sent out to any child who is 14 or older, and the custodian and parents. The court may appoint an attorney for the child. [Probate 30-2611(a),(d)].

A court hearing is held to determine whether the guardianship is in the best interests of the child. [Probate 30-2611(b)] Probate case law sheds some light on best interests [e.g. Stewart v. Herten, 254 N.W. 698 (1934)], and the judge may also look for guidance to Juvenile and Domestic Relations law.

The law does not state any other action to be taken by the standby guardian after the judicial appointment – other than to assume duties when the triggering event occurs. Subsequent matters may be covered by court rules, or Nebraska probate practice. If the guardianship is considered to be permanent, it will last until an intervening event like the child's majority, marriage or death, or court action, ends it. [Probate 30-2614]

		Nebraska Revised Statutes of 1943 Chapter 30. Decedent's Estates: protection of Persons and Property Article 26. Protection of Persons under Disability and their Property Part 2. Guardians of Minors Section 30-2601, -2608, -2611, -2613, -2614