Malloy v. Stierstorfer (In Re Guardianship of Stierstorfer) , 929 N.W.2d 87 ( 2019 )

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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186In
re Guardianship and Conservatorship of
Inez Natalia Stierstorfer, an alleged
incapacitated and protected person.
Megan M alloy, appellee and cross-appellant, v.
Inez Natalia Stierstorfer, appellant and
cross-appellee, and M ark M alousek,
Conservator, et al., appellees.
___ N.W.2d ___
Filed May 7, 2019. No. A-17-1232.
1. Guardians and Conservators: Appeal and Error. An appellate court
reviews guardianship and conservatorship proceedings for error appear-
ing on the record made in the county court.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the
decision conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable.
3. Guardians and Conservators: Evidence. A court may appoint a
guardian under Neb. Rev. Stat. § 30-2620(a) (Reissue 2016) if it is
satisfied by clear and convincing evidence that (1) the person for
whom a guardian is sought is incapacitated and (2) the appointment
is necessary or desirable as the least restrictive alternative available
for providing continuing care or supervision of the person alleged to
be incapacitated.
4. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the County Court for Douglas County: John E.
Huber, Judge. Affirmed.
D.C. “Woody” Bradford III and Ryan J. Dougherty, of
Houghton, Bradford & Whitted, P.C., L.L.O., for appellant.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186Molly M. Blazek and Alex J. McCarty, Senior Certified
Law Student, of Blazek Law Group, L.L.C., for appellee
Megan Malloy.
Pirtle, R iedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Inez Natalia Stierstorfer appeals from an order of the
Douglas County Court which appointed a conservator for her.
Megan Malloy cross-appeals, challenging the court’s refusal
to appoint a guardian for Stierstorfer. Based on the reasons
that follow, we affirm.
BACKGROUND
On May 15, 2017, Malloy, Stierstorfer’s granddaughter,
filed a petition for the appointment of an emergency temporary
guardian and the appointment of a permanent guardian and
conservator for Stierstorfer. The petition nominated Malloy
to serve as guardian and conservator. On the same day, the
trial court entered an order appointing Malloy as temporary
guardian. On May 30, an expedited hearing was held at the
request of Stierstorfer. At the hearing, the trial court removed
Malloy as temporary guardian and appointed Christine Solis
Sahebjamii, Stierstorfer’s niece, as temporary guardian until a
trial could be held.
Trial took place in July and August 2017. The evidence
showed that Stierstorfer was 80 years old at the time the petition
for conservatorship and guardianship was filed. Stierstorfer has
two daughters, Inez Elvira Stierstorfer and Renate Stierstorfer
Campbell. Malloy is Inez Elvira’s daughter.
Stierstorfer’s husband became ill around December 2015
and died on August 3, 2016. During the fall of 2016, arrange-
ments were made with an attorney to prepare a financial
power of attorney and a health care power of attorney for
Stierstorfer, both of which were signed on November 21, 2016.
The financial power of attorney and the health care power of
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186attorney each named Malloy and Campbell as Stierstorfer’s
attorneys in fact.
On February 9, 2017, Stierstorfer was evaluated by Dr.
Heather Morgan, who specializes in geriatric medicine. Morgan
diagnosed Stierstorfer with “[d]ementia related to Alzheimer’s
disease” with paranoia, as well as anxiety. She concluded
that Stierstorfer was unable to independently perform all of
her instrumental activities of daily living and that Stierstorfer
required supervision and some assistance with her activities of
daily living. Morgan further opined that given Stierstorfer’s
cognitive and functional impairments, she was no longer capa-
ble of safely managing her financial and business affairs and
was also incapable of making informed decisions about her
health care and general well-being. Morgan recommended that
Stierstorfer be placed in a facility with a “memory care unit”
and that her health care power of attorney be activated. At
the time of Morgan’s evaluation, Stierstorfer was living in the
home she had shared with her husband before he died.
As a result of Malloy’s and Campbell’s appointment as
Stierstorfer’s attorneys in fact, they complied with Morgan’s
recommendation and moved Stierstorfer into a facility with
a memory care unit on March 20, 2017, choosing Parsons
House for such care. Subsequent to Stierstorfer’s move to
Parsons House, Malloy and Campbell engaged an attorney’s
services to establish a plan to preserve Stierstorfer’s assets. To
implement such planning, an annuity was purchased to supple-
ment the cost of care at Parsons House for at least 5 years.
The planning also included transferring Stierstorfer’s assets
out of her name into a family trust, with Malloy and Campbell
as trustees. The trust was created so that Stierstorfer’s assets
could continue to be used for her care and lifestyle and
would not have to be spent down as a requirement for
her eligibility for Medicaid. The planning also included a
transfer of Stierstorfer’s home by quitclaim deed to Malloy
and Campbell.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186Stierstorfer was unhappy with her placement at Parsons
House, which placement was not discussed with her before
she was moved there, and in May 2017, she had a priest pick
her up at Parsons House and she contacted an attorney.
On May 18, 2017, 3 days after the petition for appointment
of a guardian and conservator was filed, Stierstorfer under-
went an evaluation by Dr. Robert G. Arias, a clinical psy-
chologist and neuropsychologist, to assess her cognitive state,
whether she had dementia or not, and whether she was capable
of functioning on her own without a power of attorney or
legal guardian. As a result of the evaluation, Arias concluded
that Stierstorfer did not appear to be mentally incapacitated
in terms of having dementia, incoherence, confusion, or prob-
lems with reasoning and that from a strictly cognitive stand-
point, she seemed capable of independent living, financial
management, and medication management. Arias further con-
cluded that Stierstorfer seemed capable of making responsible
decisions, had no cognitive impairment, and had no pattern of
paranoid behavior. He testified that Stierstorfer did not present
as in need of a guardian, a conservator, or an appointed power
of attorney.
Several witnesses, including Malloy, Campbell, and
Campbell’s husband testified that prior to Stierstorfer’s hus-
band’s getting sick and during the time he was sick, Stierstorfer
had gotten increasingly paranoid. She believed people, includ-
ing family members and neighbors, were breaking into her
house and moving things around, going through her mail,
and stealing from her. She also believed that a neighbor was
spying on her through her bathroom skylight and that another
neighbor had “bugged” her telephone and was listening to
her conversations. Stierstorfer also was not taking care of her
home, and it became increasingly dirty and cluttered. There
was pet urine and feces throughout the house, there were
“piles of junk” throughout the house, there was food “in vari-
ous states of mold,” there was a bathtub full of urine-soaked
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Cite as 27 Neb. App. 186cat litter, and the home had a stench of “decay, pet dander, and
pet feces.”
After her husband got sick, Stierstorfer was also unable
to manage the payment of bills, had fallen behind on her
mortgage, and was misplacing her wallet and checkbook.
Stierstorfer had piles of mail in her home and would not or
could not distinguish between what was a bill that needed atten-
tion and what was junk mail. Malloy testified that Stierstorfer
would call her in a state of panic saying she was receiving
final notices and communication from debt collectors. Malloy
testified that the family was unable to assist Stierstorfer with
writing checks to pay bills because Stierstorfer frequently lost
her checkbook. There was also testimony that Stierstorfer had
discontinued using her prescription eye drops for glaucoma
and had not seen her eye doctor in several years.
Stierstorfer testified and disagreed with the condition of
her home as described by witnesses. She believed Malloy and
Campbell put the trash and pet urine and feces in her home
to make it appear that she was incapable of taking care of
herself and her home. She also testified that in the past, she
believed her neighbor was coming into her home in the mid-
dle of the night and stealing her mail. She testified that she
now believed Malloy had been taking the mail to “incriminate
[her],” explaining that Malloy was trying to make it appear
that Stierstorfer had dementia.
Sahebjamii, Stierstorfer’s niece, testified that Stierstorfer
had been living in an apartment at an independent-living facil-
ity and that she had been staying with her since her appointment
as temporary guardian on May 30, 2017. She testified about
Stierstorfer’s daily routine at the retirement home and testified
that she was able to function without assistance throughout her
day and meet her own basic needs. For example, she testified
that Stierstorfer got herself ready in the morning and ready for
bed in the evening, went to meals in the dining area on her
own, did her own laundry, participated in activities offered
at the facility, and utilized the transportation offered by the
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186facility. Sahebjamii also testified that Stierstorfer had seen her
ophthalmologist four times since May 30 for her glaucoma and
had been using her prescribed eye drops regularly.
Following trial, the court entered an order on August 23,
2017, finding there was substantial evidence that during a
period of time when Stierstorfer’s husband was sick and sub-
sequently died, Stierstorfer was unable to provide for her basic
needs. It further found, based on the testimony of Sahebjamii
and Arias, that at the time of trial Stierstorfer was in an appro-
priate facility and was able to meet her own basic needs. It
noted that she was not living in her own home and no longer
had animals which were a problem for her in maintaining her
home. The court denied the motion to appoint a guardian for
Stierstorfer. The court also found that there was substantial evi-
dence that Stierstorfer had been unable to manage her financial
affairs for a substantial period of time and was in need of a
conservator to assist in the managing of her financial affairs.
Therefore, it granted the motion to appoint a conservator, but
further found that Malloy and Campbell were not appropriate
and qualified persons to be appointed.
On September 1, 2017, Stierstorfer filed a motion to recon-
sider the appointment of a conservator. Malloy subsequently
filed a petition for the appointment of an emergency tempo-
rary guardian, which the court granted.
Following a hearing on Stierstorfer’s motion, the trial
court entered an order denying the motion to reconsider the
appointment of a conservator, terminating the temporary
guardianship, and naming Mark Malousek as conservator. This
appeal followed.
ASSIGNMENTS OF ERROR
Stierstorfer assigns that the trial court erred in (1) deter-
mining that there was substantial evidence that she had been
unable to manage her financial affairs for a substantial period
of time and (2) appointing a conservator for her. Stierstorfer
does not assign error with respect to the court’s ruling on her
motion to reconsider.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186On cross-appeal, Malloy assigns that the trial court erred in
(1) failing to find there was clear and convincing evidence that
Stierstorfer required the appointment of a guardian, (2) failing
to find Stierstorfer required a full guardianship, and (3) failing
to appoint a guardian for Stierstorfer.
STANDARD OF REVIEW
[1,2] An appellate court reviews guardianship and conser-
vatorship proceedings for error appearing on the record made
in the county court. In re Conservatorship of Gibilisco, 277
Neb. 465, 763 N.W.2d 71 (2009). When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id.ANALYSIS
Conservatorship.
Stierstorfer argues that the trial court erred in determining
that there was substantial evidence that she had been unable
to manage her financial affairs for a substantial period of time
and as a result, finding that she was in need of a conservator.
She contends that the court failed to identify any evidence
it considered in determining she was unable to manage her
financial affairs and that the record lacks evidence to support
this determination.
The power of the county court to appoint a conservator for
an adult is governed by Neb. Rev. Stat. § 30-2630(2) (Reissue
2016), which provides:
Appointment of a conservator or other protective order
may be made in relation to the estate and property affairs
of a person if the court is satisfied by clear and convinc-
ing evidence that (i) the person is unable to manage his or
her property and property affairs effectively for reasons
such as mental illness, mental deficiency, physical illness
or disability, chronic use of drugs, chronic intoxication,
confinement, or lack of discretion in managing benefits
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Cite as 27 Neb. App. 186received from public funds, detention by a foreign power,
or disappearance; and (ii) the person has property which
will be wasted or dissipated unless proper management is
provided, or that funds are needed for the support, care,
and welfare of the person or those entitled to be sup-
ported by him or her and that protection is necessary or
desirable to obtain or provide funds.
Stierstorfer argues that Arias’ testimony clearly established
that the appointment of a conservator was not necessary. Arias
found that Stierstorfer was capable of making responsible
decisions regarding person and property, was not in need of
a guardian or a conservator, and was capable of independent
living, financial management, and medication management.
However, Morgan concluded that due to Stierstorfer’s diagno-
sis of dementia related to Alzheimer’s disease, she could no
longer manage her financial and business affairs.
In addition to Morgan’s opinion, there was competent evi-
dence to show that Stierstorfer could not manage her finances
from the time her husband got sick to the time of trial. Several
family members testified about Stierstorfer’s inability to man-
age her property affairs effectively. There was testimony that
she did not keep her bills organized and did not know what
bills needed to be paid or how to pay them. She would also
lose or misplace bills, and her family would then need to make
calls to such places as the bank and utility companies to try
to find out what bills were due. However, Stierstorfer also
frequently lost her purse and checkbook, which also made it
difficult for family members to help her write checks and pay
bills. Family members also tried to help Stierstorfer consoli-
date her bank accounts in an effort to simplify her finances.
Campbell’s husband testified that Stierstorfer was not ame-
nable to such consolidation effort, and he did not think she
really understood the concept.
The evidence also supports a finding that Stierstorfer had
assets that would be wasted or dissipated unless proper man-
agement was provided. Stierstorfer had income from Social
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186Security, a pension, and the annuity that was purchased as
part of the asset preservation planning. The annuity itself pays
out over $2,700 per month that is deposited into Stierstorfer’s
checking account.
Based on the record before us, there was competent evi-
dence to support a finding that Stierstorfer was unable to
manage her assets and that she has property that will be
wasted or dissipated without the appointment of a conservator.
Therefore, the trial court did not err in appointing a conservator
for Stierstorfer.
Guardianship.
On cross-appeal, Malloy argues that the court erred in fail-
ing to appoint a guardian for Stierstorfer and that a full guard-
ianship was warranted.
[3] A court may appoint a guardian under Neb. Rev. Stat.
§ 30-2620(a) (Reissue 2016) if it is satisfied by clear and con-
vincing evidence that (1) the person for whom a guardian is
sought is incapacitated and (2) the appointment is necessary
or desirable as the least restrictive alternative available for
providing continuing care or supervision of the person alleged
to be incapacitated. In re Guardianship & Conservatorship
of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015). An
incapacitated person means any person who is impaired by
reason of mental illness, mental deficiency, physical illness or
disability, chronic use of drugs, chronic intoxication, or other
cause (except minority) to the extent that the person lacks
sufficient understanding or capacity to make or communicate
responsible decisions concerning himself or herself. Neb. Rev.
Stat. § 30-2601(1) (Reissue 2016).
Upon our review of the record, there is competent evidence
to support the trial court’s finding that appointment of a guard-
ian for Stierstorfer was not necessary. Although Stierstorfer
had paranoid behavior before and after her husband’s death
and was living in a filthy home, the court found that the prob-
lems caused by her home and her animals had been remedied.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER
Cite as 27 Neb. App. 186At the time of trial, she was living in an apartment at a retire-
ment community where she was happy and getting along well.
Sahebjamii testified about Stierstorfer’s daily routine at the
retirement home, describing how she was able to function
without assistance throughout her day and meet her own basic
needs. Sahebjamii also testified that Stierstorfer had seen her
ophthalmologist for her glaucoma four times since Sahebjamii
was appointed as temporary guardian and had been using
her prescribed eye drops regularly. Arias also concluded that
Stierstorfer did not appear to be mentally incapacitated and
seemed capable of independent living, financial management,
and medication management.
We conclude that there was not clear and convincing evi-
dence that Stierstorfer was incapacitated, the first requirement
before a court may appoint a guardian under § 30-2620(a).
Accordingly, the trial court did not err in failing to appoint a
guardian for Stierstorfer.
[4] Malloy also assigns that the trial court erred in failing
to find that Stierstorfer required a full guardianship. Section
30-2620(a) states that if the court finds that a guardianship
should be created, it shall be a limited guardianship unless
there is clear and convincing evidence that a full guardianship
is necessary. Because we have concluded that the trial court
did not err in failing to appoint a guardian for Stierstorfer, we
need not address whether a full guardianship was necessary.
See Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868(2018) (appellate court is not obligated to engage in analysis
not necessary to adjudicate case and controversy before it).
CONCLUSION
Based on the foregoing, we conclude that the trial court
did not err in finding that a guardianship was not neces-
sary for Stierstorfer, but that a conservatorship was necessary.
Accordingly, the trial court’s order is affirmed.
A ffirmed.