Why do we sometimes pursue a guardianship over an adult without prior mental illness? Well with incompetency can come fiscal irresponsibility often the elderly can be targets for mail away and other financial scams or they may simply not be looking out for their own welfare. Can you appeal to the court that a guardian appointed by the court is not fiscally responsible either? A case filed on March 6, 2015 by the Nebraska Supreme Court says no.
- A guardian is charged with the responsibility of protecting a ward which may be a child or someone who is mentally incompetent.
- Beneficiaries of a will are the parties who stand to inherit assets or otherwise benefitfrom the administration of the estate in probate.
- One of the duties of a guardian is control over the financial interests of the ward, including their personal spending as well as control over stock portfolios, real property and other valuable assets.
- How much of a background check can a court reasonably do (or be expected to do) in ensuring that a guardian is fit to perform their duties?
- What about if the court is told by an “interested party” that they suspect that guardians are not sufficient, and what kind of proof will they need to show a probate court.
The Supreme Court of Nebraska issued on March 6, 2015 its decision in the case of In re Guardianship of Barnhart, 859 N.W. 2d 856 (Ned. 2015) where it answered the issue above in the negative.
- Proposed ward’s wife and stepdaughter petitioned for their appointment as co-guardians over ward’s person and conservatorship over ward’s estate. Potential beneficiaries under the ward’s will objected to that appointment.
- The County Court (lower trial level) tries probate cases and they found that the potential beneficiaries lacked standing to challenge appointment, these beneiciaries appealed and lost in the review phase as well.
- Is this right? If your promised a big house in Delray Beach and you know that a guardian plans to squander it, do you have no recourse in Palm Beach Probate Court? What if the guardian is all the way in Fort Myers and the ward is sitting in Pompano or Boynton Beach, should they be acting as guardian? Should you have the right to challenge it?
Want to read the entire opinion? Check out the whole opinion here.