Nebraska

Adult Guardianship Statute: 
Neb. Rev. Stat. Ann 30-2601 to -2672
Right to Counsel in Statute: Initial Guardianship Proceedings: 
Yes
Right to Counsel in Statute: Post-Appointment Guardianship Proceedings: 
Yes, Conditional
Right to Counsel Statututory Citation: 
Neb. Rev. Stat. §§ 30-2619(b), 30-2619(d), 30-2625(c)
Right to Counsel Definition in Statute: 
The person alleged to be incapacitated is entitled to be present by counsel. Neb. Rev. Stat. § 30-2619(d). Upon the filing of a petition, the court shall set a date for hearing on the issues of incapacity and unless the person alleged to be incapacitated has retained counsel of his or her own choice or has otherwise indicated a desire for an attorney of his or her own choice, the court may appoint an attorney to represent him or her in the proceeding. The court may appoint a guardian ad litem to advocate for the best interests of the person alleged to be incapacitated. After appointment, the ward may retain an attorney for the sole purpose of challenging the guardianship, the terms of the guardianship, or the actions of the guardian on behalf of the ward. See Neb. Rev. Stat. § 30-2620(b).
Advocacy Role of Counsel Defined in Statute: 
Not stated
Advocacy Role of Counsel Definition in Statute: 

Neb. Prof. Conduct Rule § 3-501.14: (a) The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Comments: [1] Nevertheless, a client with diminished capacity often has the ability to understand, deliberate
upon, and reach conclusions about matters affecting the client’s own well-being. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. [3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf. [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. [6] In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Professional Rules &/or Ethics Opinions: 

Neb. Prof. Conduct Rule § 3-501.14: (a) The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Comments: [1] Nevertheless, a client with diminished capacity often has the ability to understand, deliberate upon, and reach conclusions about matters affecting the client’s own well-being. [2] The fact that a client suffers a disability does not diminish the lawyer’s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. [3] The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client’s interests foremost and, except for protective action authorized under paragraph (b), must to look to the client, and not family members, to make decisions on the client’s behalf. [4] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. [6] In determining the extent of the client’s diminished capacity, the lawyer should consider and balance such factors as: the client’s ability to articulate reasoning leading to a decision, variability of state of mind and ability to appreciate consequences of a decision; the substantive fairness of a decision; and the consistency of a decision with the known long-term commitments and values of the client. In appropriate circumstances, the lawyer may seek guidance from an appropriate diagnostician.

Case Law Discussing Role of Counsel: 

Remanding case and faulting the trial court for, among other things, "The court ignored [the client's] expressed wishes as to who his attorneys of record should be. The court refused to allow [the client] to dismiss [his attorney], despite the fact that [the attorney] had long since ceased to advocate for her client’s expressed desires or to pursue [his client's] right to an evidentiary hearing." Prokupek v. Larson, 708 N.W.2d 262, 276 (Neb. 2006).

Other Important Info: 

The person alleged to be incapacitated is entitled to be present at the hearing in person and to see and hear all evidence bearing upon his or her condition. He or she is entitled to be present by counsel, to compel the attendance of witnesses, to present evidence, to cross-examine witnesses, including the court-appointed physician and the visitor appointed by the court , and to appeal any final orders or judgments. The issue may be determined at a closed hearing only if the person alleged to be incapacitated or his or her counsel so requests. Neb. Rev. Stat. § 30-2619(d).The court may appoint a
guardian if it is satisfied by clear and convincing evidence that the person for whom a guardian is sought is incapacitated and that the appointment is necessary or desirable as the least restrictive alternative available for providing continuing care or supervision of the person of the person alleged to be incapacitated. If the court finds that a guardianship should be created, the guardianship shall be a limited guardianship unless the court finds by clear and convincing evidence that a full guardianship is necessary. Neb. Rev. Stat. § 30-2620(a).