Nebraska Administrative Code
Topic - HEALTH AND HUMAN SERVICES SYSTEM
Title 465 - INTRODUCTION TO THE PROGRAM MANUAL
Chapter 2 - PROGRAM UNIVERSALS
Section 465-2-008 - Protective Payee, Guardian, Conservator, and Power of Attorney

Universal Citation: 465 NE Admin Rules and Regs ch 2 ยง 008

Current through March 20, 2024

008.01 Definitions

Conservator: A person or corporation appointed by a county court to control and manage the estate, property, and/or other business affairs of a person who, the court has determined, is unable to do so.

Guardian: A person appointed by a court of competent jurisdiction to control and manage the financial and/or personal affairs of an individual who is found incapacitated and requires continuing care or supervision.

Power of Attorney: A written authorization for a person to legally act on behalf of another individual.

Protective Payee: A person assigned to receive the assistance grant for a client because the client has established a pattern of mismanaging his/her grant (see 468 NAC 3-008.04), or whose physical or mental impairment causes inability to manage AABD or SDP payments (see 469 NAC 3-007.02B).

008.02 Appointment and Discharge of Guardians and Conservators

A petition for guardianship may be filed by any competent person who is able to show cause as to why the individual named needs a guardian. If a conservator is being requested, the individual himself or herself or a person showing good cause files the petition. In either case, the court may -

1. Grant or dismiss the petition at its discretion;

2. Select the person who is to serve;

3. Issue letters of guardianship/conservatorship as evidence of the appointment; or

4. Establish a full or limited guardianship at its discretion.

A guardian or conservator may be removed only by court order.

2-008.02A Duties of Guardians and Conservators: The court may establish a full guardianship which will give the guardian full responsibility in all ten areas described in 473 NAC 5-015.11C or may establish a limited guardianship if it decides the client only needs assistance in some of these areas. A conservatorship gives the conservator responsibility for the estate, property, and/or other business affairs of the client.

2-008.02B Department Responsibility: If an Adult Protective Services (APS), AABD, or ADC client is unable to handle his/her finances or personal affairs, the appropriate staff, on its own initiative, in cooperation with the individual's relatives or friends, may arrange for the appointment of a guardian or conservator, power of attorney, or protective payee. See 473 NAC 5-015.11 for procedures to follow in Adult Protective Services.

If a guardian is needed and the client has no relatives or friends to act on his/her behalf and best interest, the appropriate staff person may file a petition requesting that a guardian be appointed.

If the court requests its services, the Department shall assist in locating a suitable person to act as guardian or conservator.

While the appointment of a guardian or conservator for a client who needs one is desirable, it is not an eligibility requirement. Assistance may not be suspended or terminated due to the absence of a guardian or conservator.

008.03 Assignment of Power of Attorney

A power of attorney may be limited to a single transaction or it may be general, covering several transactions. It is a written authorization entered into voluntarily by the individual giving the power of attorney; the individual must be competent in order to create a valid power of attorney.

A power of attorney may be revoked by the individual to whom it is granted. It may also be terminated by the request, death, disability, or incapacity of the client giving the power of attorney. The power of attorney may remain effective when the adult becomes disabled or incompetent if s/he specifies in the document that the power should continue if disability or incompetence occurs. Caution should be exercised when suggesting this course of action to a client. If a court finds the client was incapacitated at the time s/he gave the power of attorney, the power of attorney may be terminated and all actions transacted under that power of attorney declared null and void. The power of attorney must be notarized when real property is involved.

A Department employee may not have power of attorney for a client.

008.04 Assignment of Protective Payee, Guardian, or Conservator Status

2-008.04A Employee's Role: An employee of the Nebraska Department of Social Services may not serve as a guardian or conservator for a client for whom s/he -
1. Determines eligibility;

2. Authorizes services or assistance;

3. Provides direct service; or

4. Has any other professional relationship which may be considered a conflict of interest.

A request for an employee to act as a guardian or a conservator must be approved by the Director or his/her designee.

2-008.04B Worker as Protective Payee: A worker may act as protective payee for a client only if s/he does not determine eligibility for a categorical program for that client (see 468 NAC 3-008.04A and 469 NAC 3-007.02B 2). All other community resources must be explored before a worker may accept the payee assignment.

2-008.04C Service Provider's Role: The worker shall obtain approval from the Human Services Division before a service provider who contracts with the Department may act as protective payee for a client s/he serves.

008.05 Payments to Guardians or Conservators

Letters of guardianship, or conservatorship are filed in the client's case record. After receipt of the guardianship or conservatorship papers, the worker shall make necessary changes to ensure that assistance payments are made to the guardian or conservator. For guardianship/conservatorship fees, see 469 NAC 3-004.03G.

2-008.05A Beatrice State Developmental Center and Regional Centers: The superintendent of the Beatrice State Developmental Center and other state regional centers may serve as payees for the patients and may receive assistance payments on behalf of the patients.

008.06 Court Costs and Attorneys' Fees

When the appointment of a guardian or conservator for an assistance recipient, payee, or APS client is initiated by Department of Social Services staff, administrative funds may be used to pay court costs involved. Court costs may include -

1. An attorney fee for appointment of a guardian or conservator;

2. An attorney fee for closing a guardianship or conservatorship;

3. The guardian's bond; and

4. The court-set fee for a guardian ad litem.

See 465-000 -203 for the maximum amounts for attorney fees for appointing a guardian or conservator or closing a guardianship or conservatorship.

The worker shall, whenever possible, encourage relatives, friends, legal services staff, private attorneys as a "pro bono" service, and state and local lawyer referral programs to absorb the court costs and attorney fees.

In APS cases when the client possesses an estate, the worker shall encourage the court to order that the court costs and attorney fees be paid by the estate of the client.

008.07 Billing

Bills for attorney fees and bonds (along with a copy of letters of guardianship/conservatorship) must be submitted to Finance and Accounting using the appropriate disbursement document.

008.08 Use of Department Staff as Court Visitors

Department staff may accept appointment to serve in the capacity of a court appointed visitor when:

1. The adult for whom a guardianship/conservatorship is being petitioned receives no benefits or services from the Department;

2. Adult Protective Services have not been involved in the petitioning for the guardianship/conservatorship; and

3. The Department staff member would not be executing his/her court appointed duties while on agency time.

Disclaimer: These regulations may not be the most recent version. Nebraska may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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