G1597

Guardianship of a Minor

State laws specify the circumstances for the appointment of a Guardian of a minor. This NebGuide, one of seven in this series, outlines the powers and responsibilities of a Guardian of a minor.


Development Team of
Eileen M. Krumbach, Extension Educator, University of Nebraska
Richard J. Bischoff, Professor, UNL Department of Child, Youth and Family Studies
Sue Fredricks, Executive Director, Volunteers Assisting Seniors (VAS), Omaha
Thomas K. Harmon, Attorney at Law, Omaha
Bruce A. Cudly, Nebraska Region V Services
Dianne D. Delair, Staff Attorney, Nebraska Advocacy Services, Inc.
Julie J. Hippen, Program Specialist, Nebraska Department of Health and Human Services, Adult Protective Services
Marla J. Fischer-Lempke, Executive Director, The Arc of Nebraska
Mary Evans, Guardian
Sheryl L. Connolly, Trial Court Services Director, Administrative Office of the Courts


There are circumstances that require that a Guardian be appointed for a child or adolescent who has not yet reached the age of majority (19). There may be different requirements for the Guardian depending upon the reasons for their appointment.

Guardianship of a Minor — Probate Court

Parents might decide who they would like to have as Guardian for their child by making that selection in their will. If the parents die before their child reaches the age of majority, the Court can make a testamentary appointment of that person as Guardian when he/she files an acceptance with the Court. This can be done if the parents have named a person(s) in their last will and testament.

The Court also may be petitioned to appoint a Guardian when the parental rights of minor’s parents have been suspended by the circumstances or terminated. These rights could have been suspended by a prior Court action or for other reasons, including a sudden illness or incapacity of the parents, overseas work, a death of the parents, or abandonment of the child with no prearrangements.

These types of Guardianships follow the same process as adult Guardianships. A typical result is the appointment of a full Guardian because the law already presumes that the child does not have the ability to exercise his or her rights until the age of 19. The only exception would be if the Court determines that the child is emancipated prior to turning the age of 19.

The Nebraska Statute regarding the powers of the Guardian of a minor is Nebraska Revised Statute 30-2613, 1998 cum. Supp.

Powers of a Guardian of a Minor

  1. A Guardian of a minor has the powers and responsibilities of a parent who has not been deprived of custody of his minor and unemancipated child. A Guardian is not legally obligated to provide from his or her own funds for the Ward and is not liable to third persons by reason of the parental relationship for acts of the Ward. A Guardian has the following powers and duties:

    a. He/she must take reasonable care of and take steps to protect the Ward’s personal effects.
       
    b. He/she may receive assets payable for the support of the Ward and must apply these assets to the support and care of the Ward.
       
    c. The Guardian is empowered to facilitate the Ward’s education, social or other activities and to authorize medical or other professional care, treatment or advice. When giving consent, the Guardian is not liable for injuries to the minor caused by the negligence of other individuals unless it was illegal to consent. A Guardian may consent to the marriage or adoption of his/her Ward.
       
    d. A Guardian must report the condition of the Ward and of the Ward’s estate which has been subject to his/her possession or control at least annually or at such other times as ordered by the court.

  2. Appointment of a Guardian for a minor shall not relieve a parent or parents, liable for the support of such minor, from their obligation to provide for such minor. The application of Guardianship, income, and principal after payment of debts and charges of managing the estate, in relationship to the respective obligations owed by fathers, mothers, and others, for the support, maintenance, and education of the minor shall be:
a. The income and property of the parents in such manner as they can reasonably afford, with regard given to the situation of the family and to all the circumstances of the case.
   
b. The income and property of any other person having a legal obligation to support the minor, in such manner as the person can reasonably afford.
   
c. The Guardianship principal, either personal or real estate, in whole or in part, as shall be judged for the best interest of the minor, considering all the circumstances of the minor and those liable for his support.
  1. The Court may from time to time authorize the Guardian to use so much of the Guardianship income or principal, if it is shown that

    • an emergency exists which justifies an expenditure, or

    • a fund has been given to the minor for a special purpose and the Court can, with reasonable certainty, ascertain such purpose.
      Note:
      The Guardian, acting as conservator of the assets and income of the minor, cannot accept payment of any amount (even room and board) without approval of the Court. A bill should be submitted with the annual report of the Court. The judge will then approve or disapprove the amounts requested. If funds need to be paid to the Guardian prior to the annual report, the Guardian should obtain Court approval. Any investing or management of the assets and income should be done prudently. Decisions regarding purchases and expenditures for the minor also should be made in a prudent manner.

  2. The Court may require a Guardian to furnish a bond. Termination of the Guardianship and the authority of the Guardian occurs when the child dies or reaches the age of majority. A final accounting of funds and a final report must be submitted to the Court. If the child is 19, he or she must receive notice of this accounting and report. If the child who has turned 19 is still in need of Guardianship due to a disability or some other incapacity to exercise his or her own rights, a new petition needs to be filed for appointment of a Guardian for an adult.

  3. The Guardian is required to obtain support from the Ward’s parent or parents or any other person who is obligated to provide support to the extent that they are able.

The filing and reporting requirements and forms for these Guardians of minors is the same as discussed in the NebGuide: G1592, Guardianship Responsibilities to the Court.

Resources

National Guardianship Association. (1998). A Model Code of Ethics for Guardians. Tucson, Ariz.

National Guardianship Association. (2003). Standards of Practice. Tucson, Ariz.

Nebraska Advocacy Services.(1996). Developmental Disability Law: A Manual for Advocates. Lincoln, Nebr.

Nebraska Revised Statutes, Article 26, Section 30-26012661.

QR Code

UNL Guardianship website at http://www.extension.unl.edu/guardianship/ includes information, helpful links, and a calendar of educational workshops and programs.


 

This publication has been peer reviewed.


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2005, Revised December 2011

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