BROKEN BOW — A Nebraska law designed to prevent abuse of vulnerable citizens by their guardians has gone too far, according to Margaret Smith of Broken Bow, and she wants it repealed.
“This law is very cruel and unnecessary,” Smith said. “It made no allowances for people who had been married for a lifetime. It has the same regulations as if being a guardian for someone you didn’t even know.”
LB157, also known as the Guardianship Reform Act of 2011, passed unanimously in the Nebraska Legislature. The author of the bill was District 27 Sen. Colby Coash of Lincoln. Gov. Dave Heineman signed the bill in February 2011, and it took effect in January.
Margaret has been the guardian for her husband, Bob, since March 2006 when he was hurt while working at a cattle sale in Broken Bow. He hit his head on the concrete and even though he regained consciousness two months later, he remains physically and mentally disabled and lives in a nursing home.
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At the time of the accident, Margaret already had power of attorney for her husband’s medical care, but because he couldn’t sign his name to grant her power of attorney over his finances, she did the only other thing she could — she got a guardianship of him. With that, she could continue to manage the couple’s business.
“It has been an aggravation, but with an understanding judge, we were able to make it work,” Margaret said.
In February, when Margaret went to the judge’s office to turn in her annual report regarding her husband’s condition, she was given a large stack of papers containing new regulations and forms she needed to fill out.
“I got as far as the paragraph that said I would need a court order to take any money out of our joint accounts and took it all to my attorney,” Margaret said.
Some of the 16 mandates of LB157 include that funds of the guardian and ward should not be co-mingled. A guardian will take no money out of the shared accounts by any means, for any purpose without a court order, and guardians are required to use specific forms downloaded from the Nebraska Supreme Court’s website. In addition, guardians are required to pay a $5 fee to file required reports.
Until this law passed, Margaret said she didn’t have a problem. Now she said believes she needs a court order to buy a tube of toothpaste from the joint bank account she shares with her incapacitated husband.
Their funds have been co-mingled for the last 56 years. In the nursing home, Bob doesn’t need any of the assets he shares with his wife. His expenses are being paid through worker’s compensation funds.
Margaret still has to pay her own cost of living. LB157 won’t allow her to spend any money from an account with her husband’s name on it, even though it is just as much her money as it is his. She said her attorneys have spent nine months trying to help her get access to her assets, get her money back and have use of the couple’s land.
“When he was healthy, I could’ve taken every penny out of that account and gone to Mexico if I had wanted to,” Margaret said.
Coash said it’s been Nebraska law that guardians and conservators had to get court orders to pay amounts to themselves for many years.
“I understand that this restriction can be a difficult adjustment for spouses as they have previously shared money easily from joint accounts,” Coash said. “Now that Mr. Smith is a protected person and Mrs. Smith is his guardian, these assets cannot mingle.”
In March, she was forced to set up another bank account to live on, adding any money she could scrounge up.
She finds the requirements of annual reports and accounting to be a daunting task, even with mental capacities still intact, and worries about others in similar situations at a more elderly age, unskilled in the use of the Internet required to wade through stacks of forms.
“These mandates force guardians to do exactly what the law was intended to prevent,” Margaret said. “They make it necessary to strip the ward of any ownership of funds or property.”
Coash said the Supreme Court’s Administrative Office is partnering with the Law College at University of Nebraska-Lincoln to create a step-by-step handbook to help guardians and conservators with their annual duties.
Margaret said she had no desire at all to take away all of her husband’s funds and property, some of which was given to him by his parents and some of it purchased together.
“This law leaves me no choice. If I am to be able to manage what we spent 50 years building together, I have to get the court to let me take his name off of everything,” Smith said. “It makes no sense to me. If I wasn’t in the middle of it, I wouldn’t believe it.”
Margaret is looking for help in taking LB157 off the books. She’s spoken to various groups to get help lobbying the state legislature.
In an email response for comment from the office of state Sen. John Wightman of Lexington, Smith’s District 36 representative, Legislative Aide Roger Keetle wrote that Wightman would support changes to LB157 to address the issues Margaret has raised.
“LB157 was enacted into law because of well-documented abuses by guardians of their fiduciary duty to their wards. In the process of implementation it appears that the Supreme Court expanded the scope of the law and its obligations beyond what was contemplated in the law through regulations,” Keetle wrote.
He added the Supreme Court has heard “loud and clear” from attorneys that the regulations go too far and impose unnecessary burdens on guardians such as Smith.
“She is not alone in seeking changes to the law,” he wrote.
He said the Supreme Court is re-drafting the requirements and proposed changes will be discussed when the Nebraska Legislature convenes in January.
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