In re Guardianship & Conservatorship of Mueller

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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430In re Guardianship and Conservatorship of Lorine Mueller,
an alleged incapacitated person.
M argo Loop, guardian and conservator, appellee,
v. Cheryl Mueller, appellant.
___ N.W.2d ___
Filed December 8, 2015. Nos. A-14-780, A-14-971.
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 deci-
sion 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) (Cum. Supp. 2014) 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. Guardians and Conservators. The persons eligible for appointment
as guardian, as well as their respective priorities, are described in Neb.
Rev. Stat. § 30-2627 (Reissue 2008). If it is in the best interest of the
ward, a court may pass over a person having priority and appoint a per-
son having lower or no priority.
5. Guardians and Conservators: Agents. If a guardian has been appointed
and an attorney in fact has been designated and authorized under a valid
power of attorney for health care, the attorney in fact’s authority to
make health care decisions supersedes the guardian’s authority to make
such decisions.
6. ____: ____. Neb. Rev. Stat. §§ 30-2628(c) (Cum. Supp. 2014) and
30-3420(5)(b) and (c) (Reissue 2008) do not preclude a court from
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430considering a ward’s best interest and revoking or setting aside a health
care power of attorney in favor of a guardianship when the facts support
such action.
7. ____: ____. Under Neb. Rev. Stat. § 30-3421 (Reissue 2008), a court
can revoke a power of attorney for health care upon finding (1) that the
attorney in fact has violated, failed to perform, or is unable to perform
the duty to act in a manner consistent with the principal’s wishes or,
when the principal’s wishes are unknown, in the principal’s best inter-
est and (2) that the principal lacks the capacity to revoke the power
of attorney.
8. Guardians and Conservators: Evidence. Under Neb. Rev. Stat.
§ 30-2630(2) (Reissue 2008), a court may appoint a conservator to
manage a person’s estate and property affairs if satisfied by clear and
convincing evidence that (1) the person is unable to manage his or her
property and property affairs effectively for reasons including mental
illness, mental deficiency, or physical illness or disability and (2) the
person has property that will be wasted or dissipated unless proper
management is provided, or funds are needed for the support, care, and
welfare of the person and protection is necessary or desirable to obtain
or provide the funds.
9. Guardians and Conservators: Agents. Pursuant to Neb. Rev. Stat.
§ 30-2639(b)(1) (Reissue 2008), a person nominated in a power of attor-
ney or acting under a power of attorney has first priority for appoint-
ment as conservator; however, if it is in the best interest of the protected
person, a court may pass over a person having priority and appoint a
person having lower or no priority.
10. ____: ____. A conservatorship may be necessary despite the existence
of a power of attorney where an attorney in fact has violated his or her
fiduciary duty, to act solely for the benefit of the principal, by engaging
in self-dealing with the protected person’s estate.
11. Decedents’ Estates: Wills: Words and Phrases. A specific devise is
a provision in a will that passes a particular piece of property. When
specifically devised property ceases to be part of the estate at the time
of the testator’s death, ademption occurs.
12. Estates: Wills: Sales: Presumptions: Words and Phrases. Ademption
by implied revocation occurs when specifically devised property is
sold during the testator’s lifetime. This type of ademption is based
upon a presumed alteration of intention arising from the changed con-
dition and circumstances of the testator, or on the presumption that
the will would have been different had it been executed under the
altered circumstances.
13. Estates: Sales. The common-law doctrine of ademption has been
modified by statute under certain circumstances. Pursuant to Neb. Rev.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430Stat. § 30-2346(a) (Reissue 2008), when a conservator or guardian, not
the testator, sells specifically devised property during the testator’s life-
time, no ademption occurs. The proceeds of the sale are not included
in the testator’s residuary estate, but, rather, are given to the specific
devisee to honor the specific devise.
14. Guardians and Conservators: Estates. Pursuant to Neb. Rev. Stat.
§ 30-2656 (Reissue 2008), in selecting the assets of a protected person’s
estate for distribution and utilizing the powers of revocation or with-
drawal available for the support of the protected person, a conservator
and the court should take into account any known estate plan of the
protected person, including his or her will.
15. Guardians and Conservators: Estates: Sales. Given the heightened
protection that specific devises receive by statute, a conservator tak-
ing into account a protected person’s known estate plan should invade
specifically devised property as a last resort, and only when doing so
is clearly necessary for the protected person’s care and support. Where
there is ample property in a protected person’s estate that can be sold
to adequately fund the protected person’s care without invading specifi-
cally devised property, the conservator and the court should not sell the
specifically devised property unless circumstances clearly establish that
it is in the protected person’s best interests to do so.
Appeal from the County Court for Platte County: Frank J.
Skorupa, Judge. Judgment in No. A-14-780 affirmed. Judgment
in No. A-14-971 affirmed in part, and in part reversed.
Clark J. Grant, of Grant & Grant, for appellant.
Brenda K. Smith and Heather S. Voegele, of Dvorak &
Donovan Law Group, L.L.C., for appellee.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
Bishop, Judge.
Margo Loop was appointed guardian and conservator for
her 94-year-old mother, Lorine Mueller, in the county court
for Platte County, Nebraska. At the time of the appointment,
Lorine suffered from moderate to severe Alzheimer’s disease
and dementia and resided in a skilled nursing facility. After
appointing Margo, the county court authorized her to sell
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430various real property to fund Lorine’s care, including a 17.56-
acre property owned by Mue-Cow Farms, Inc. (Mue-Cow), a
corporation of which Lorine is the majority shareholder.
Cheryl Mueller, Lorine’s daughter-in-law who lives in a
farmhouse on the Mue-Cow property and alleges that she is a
minority shareholder of Mue-Cow, appeals the orders appoint-
ing Margo guardian and conservator and authorizing her to sell
the Mue-Cow property. Cheryl does not dispute that Lorine is
incapacitated and unable to manage her property; instead, she
argues that as Lorine’s attorney in fact under powers of attor-
ney for health care and asset management, she is capable of
caring for Lorine and managing her property. She also argues
that if a guardian and conservator were necessary, she had
statutory priority for appointment. Cheryl challenges the order
authorizing the sale of the Mue-Cow property because it fails
to preserve Lorine’s estate plan, in which Lorine devised the
property to Cheryl.
As explained below, we affirm the county court’s order
appointing Margo guardian and conservator for Lorine.
However, we reverse the county court’s order authorizing
Margo to sell the Mue-Cow property. We conclude that because
Lorine specifically devised the Mue-Cow property to Cheryl in
her will, and because there was sufficient property in Lorine’s
estate to adequately support her without selling the Mue-Cow
property, it was error to authorize Margo to sell the Mue-
Cow property absent circumstances establishing that it was in
Lorine’s best interests to do so.
BACKGROUND
Lorine was born in January 1920 and had three children,
Margo, Gary Mueller, and Randy Mueller. Margo has lived
in Wichita, Kansas, since 1982; Gary has lived in St. Charles,
Missouri, since 1991; and Randy died in 2001 while living in
Columbus, Nebraska.
Until 1990, Lorine lived with her husband in the farmhouse
on the Mue-Cow property, which is located in Platte County.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430Lorine’s husband conducted a dairy cow operation on the
property and farmed adjoining parcels of land that totaled
approximately 156 acres. Shortly before her husband passed
away in 1991, Lorine and he moved into a house in the city
of Columbus.
Cheryl was married to Lorine’s son Randy. When Lorine
and her husband moved to Columbus, Cheryl and Randy
moved into the farmhouse on the Mue-Cow property and
Randy managed the dairy cow operation and farm. In 2003,
approximately 2 years after Randy passed away, Lorine sold
her house in Columbus and moved back to the farmhouse to
live with Cheryl. In March 2006, Lorine executed powers of
attorney for health care and asset management, appointing
Cheryl as her attorney in fact for health care and property-
related decisions.
In March 2014, Lorine fell and broke her hip while still resid-
ing at the farmhouse. She underwent surgery and was admit-
ted to Mory’s Haven, a skilled nursing facility in Columbus,
for rehabilitation.
In May 2014, while Lorine was at Mory’s Haven, Margo
and Gary filed a petition for appointment of a guardian and
conservator for Lorine. They alleged that Lorine suffered from
Alzheimer’s disease and dementia and was in need of con-
tinuing medical care for her broken hip. They requested that
Margo be appointed guardian and conservator but noted that
Cheryl might have a prior right to appointment by virtue of the
powers of attorney. Margo and Gary alleged that it would not
be in Lorine’s best interests to appoint Cheryl, because Cheryl
planned to remove Lorine from Mory’s Haven.
Cheryl objected to the petition, arguing that Lorine was not
incapacitated and that appointing a guardian and conserva-
tor was not the least restrictive means of caring for Lorine
or managing her property. Cheryl contended that the pow-
ers of attorney were less restrictive and accomplished the
same goals.
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430The court appointed Margo temporary guardian and conser-
vator, pending a hearing on the petition.
Guardian Ad Litem’s Report
and Recommendation.
Prior to the hearing on the petition, the guardian ad litem
(GAL) appointed by the court for Lorine filed a report and
recommendation. She confirmed that Lorine suffered from
moderate to severe Alzheimer’s disease and dementia. She
further indicated that Lorine was in a wheelchair and that her
doctor had advised that she should not “‘be doing stairs from
here on out.’” The GAL noted that the only bathroom in the
farmhouse was located on the second floor, up a series of
24 steps.
The GAL stated that until Lorine’s hospitalization in March
2014, Cheryl did not believe that she was acting in the capac-
ity of Lorine’s attorney in fact under the powers of attorney.
The GAL reported that Cheryl was first listed on Lorine’s
bank account in September 2011. The GAL was concerned
with the number of checks written to “‘Cash’” and was unable
to verify Cheryl’s explanations for the checks. Cheryl told the
GAL that she had not understood her fiduciary duties as attor-
ney in fact and had signed checks at Lorine’s direction and for
convenience. Cheryl indicated that she and Lorine had shared
home expenses and taken care of each other.
The GAL located seven lawsuits that were either collec-
tion or tax matters involving Lorine filed during the time that
Cheryl held the powers of attorney. The GAL also discov-
ered that Cheryl’s father had loaned money for the payment
of delinquent taxes on Lorine’s properties and that promis-
sory notes and deeds of trust issued as security for the notes
were recorded against the properties. The GAL reported that
Cheryl’s father was recently deceased and that Cheryl was a
beneficiary of his estate.
The GAL noted that in addition to Lorine’s Mue-Cow shares
and the parcels of land adjoining the Mue-Cow property,
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430Lorine owned a rental home in Columbus and leased a lot at
Wagner Lakes. The rental home had not had a tenant for 3
years due to water damage that occurred after the last tenant
moved out. Cheryl told the GAL that the damage had been
repaired and that the repairs had been funded in part using a
loan from Cheryl’s father. The Wagner Lakes lot did not pro-
duce any income.
The GAL indicated that an individual had farmed approxi-
mately 70 to 80 acres of Lorine’s land for the prior 3 years
under an oral agreement for a 50-50 crop share. Cheryl
informed the GAL that the agreement with that individual
had not been as profitable as preferred during its first 2 years
because of drought, lack of crop insurance, and other factors.
Cheryl reported that crop insurance had since been obtained.
The GAL stated that Cheryl had consistently taken Lorine to
doctors’ appointments over the years. However, the GAL was
concerned that Lorine had not received proper dental care and
had experienced tooth decay and broken teeth. Cheryl told the
GAL that Lorine had not wanted to receive followup care after
she was fitted for dentures between 2003 and 2005 because
they caused her pain.
The GAL further reported that during Lorine’s time at
Mory’s Haven, the administrative staff had limited the times
that Cheryl could visit. The staff had been concerned with how
Cheryl treated Lorine, including that Cheryl was withholding
snacks from her and attempting to have her walk without the
proper assistance. Under the restrictions, Cheryl was permitted
to visit Lorine only when a member of the administrative staff
was present.
The GAL stated that Margo was concerned that Cheryl
planned to move Lorine back to the farmhouse as soon as pos-
sible. Margo was also concerned with the lack of dental care
and with Cheryl’s handling of Lorine’s finances. The GAL
noted that Margo had not had much contact with Lorine for a
number of years, but observed that Margo and Cheryl gave dif-
fering explanations for this.
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430The GAL recommended that Margo be appointed guardian
and conservator. The GAL did not believe that it would be in
Lorine’s best interests to appoint Cheryl, due to her financial
interests in Lorine’s property, including her status as a ben-
eficiary of her father’s estate. Further, Cheryl lived on the
property owned by Mue-Cow, in which Lorine held a majority
interest and, according to the GAL, Cheryl owned a minor-
ity interest.
Hearing on Petition to Appoint
Guardian and Conservator.
On July 22, 2014, the court held a hearing on the peti-
tion. Because Cheryl does not dispute on appeal that Lorine
is incapacitated and unable to manage her property, we only
briefly summarize the testimony relating to Lorine’s incapac-
ity. According to Cheryl, Lorine stopped driving at her doc-
tor’s recommendation approximately 5 years prior to the date
of the hearing because she would get lost. Gary testified that
Lorine had suffered from memory problems for a “very, very
long time” and that when he visited her in July 2011, Lorine
initially did not know who he was and did not know where he
lived or the names of his children. While a resident at Mory’s
Haven in 2014, Lorine tested in the “severe impairment” cat-
egory on mental status examinations. The record reflects that
at the time of the hearing, Lorine suffered from moderate to
severe Alzheimer’s disease and dementia, did not understand
where she resided, did not know her children’s names, and had
difficulty following conversation.
The first two witnesses were Sue Bougger, the social
serv­ice director at Mory’s Haven, and Terri Groteluschen,
the administrator of Mory’s Haven. Bougger testified that
when Cheryl visited Lorine at Mory’s Haven, Lorine’s mood
became “more subdued, apprehensive, [and] intimidated.”
Bougger described Cheryl as abrupt and said that she yells
and causes “quite a commotion.” Bougger indicated that
Cheryl had taken foods away from Lorine, even though they
were not medically restricted. Groteluschen confirmed this
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430and testified that she had restricted Cheryl to visiting Lorine
only when a member of the administrative staff was present.
During Groteluschen’s 11 years at Mory’s Haven, she had
placed restrictions on a person’s visitation only one other
time. She placed the restrictions on Cheryl because staff
members felt that they were unable to care for Lorine with
Cheryl’s disruptions.
Bougger testified that when Margo was present, Lorine was
content and peaceful. Bougger described Margo as open, con-
scientious, and appropriately concerned about Lorine’s care.
Groteluschen testified that she had seen Margo at Mory’s
Haven frequently and that Margo was very caring.
Lorine’s son Gary testified that after Margo was appointed
temporary guardian and conservator, she gave him access to
Lorine’s bank records for the past 3 to 4 years. He observed that
Lorine received no income from the rental home in Columbus,
for the Wagner Lakes lot, or for the Mue-Cow property. Lorine
received between $5,000 and $7,000 per year in income from
her farmland.
Gary explained that as part of his job at the Federal Deposit
Insurance Corporation, he examined agricultural banks, which
required reviewing farm loans made by those banks. Based on
his work experience and on his time helping on the farm as
a minor, he prepared cashflow projections for the years 2010
to 2014 for Lorine’s properties, including a 48-acre parcel
used for pasture, a 99-acre parcel that was tillable, and the
rental home in Columbus. His projections of total cashflow
for the properties based on treating the 99 acres as dryland
were between $24,000 and $34,000 per year; treating the 99
acres as irrigated raised the projections to between $31,000
and $44,000.
Gary testified that after Lorine broke her hip in March
2014, he learned that Cheryl had removed him from the list of
persons approved to access Lorine’s hospital records. Margo
had since placed his name back on the list. Gary’s concern
with Cheryl was that due to her daycare business and Lorine’s
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Cite as 23 Neb. App. 430specialized needs, Cheryl did not have adequate time to care
for Lorine.
Margo testified that during the past 5 years it had been very
difficult to visit Lorine because Cheryl had restricted Margo’s
access to her. Margo attended a class reunion the prior summer
and was told it was not a good time to visit Lorine. Lorine did
not have a landline or a cell phone, which also made access
difficult. Margo purchased a cell phone for Lorine in 2004, but
she never learned to use it.
Margo testified that since being appointed temporary guard-
ian and conservator, she had reviewed Lorine’s financial
records and inspected her property, although she had not been
allowed inside the farmhouse on the Mue-Cow property. At
the time of her temporary appointment, there was no insurance
on the properties; Margo had since obtained insurance policies
for them.
Margo had discovered that “large sums of cash” had been
withdrawn from Lorine’s bank accounts following the execu-
tion of the powers of attorney in March 2006. Although
Margo’s testimony fails to provide a specific timeframe, she
testified that in 1 month, there was $2,000 in checks written
to a grocery store. There were checks written for car insur-
ance after Lorine was unable to drive and checks written for
groceries and for discount store purchases after Lorine was
admitted to Mory’s Haven. All of the checks were signed
by Cheryl.
Margo confirmed that promissory notes and deeds of trust
had been recorded against all of Lorine’s properties in Platte
County. The promissory notes and deeds of trust, which were
admitted into evidence, reflected a total of $31,389.60 in
loans from Cheryl’s father to Lorine between February and
April 2007.
Margo further testified that five foreclosure cases brought
by the purchasers of tax liens had been filed in Platte County
against Lorine’s properties in recent years. Copies of the com-
plaints for foreclosure were admitted into evidence.
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Decisions of the Nebraska Court of A ppeals
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF MUELLER
Cite as 23 Neb. App. 430According to Margo, after Lorine’s rental property in
Columbus sustained water damage in 2009, an insurance
company issued a check for $48,429. Margo confirmed that
$22,000 went to a contractor for demolition and mold abate-
ment. Margo was still attempting to find out what happened
to the remaining $26,000 in insurance proceeds. Lorine’s bank
records did not show a deposit of funds in that amount.
Margo testified that in 1977, Lorine and her husband entered
into a 50-year lease for the Wagner Lakes lot, which had a
small cabin on it. In May 2007, the lease was assigned to
Lorine and Cheryl jointly. To Margo’s knowledge, Cheryl had
not compensated Lorine for the assignment.
Margo identified copies of notices of state and federal tax
liens for unpaid taxes recorded in Platte County against any
property in which Cheryl had an ownership interest. The
tax liens were issued between 2005 and 2012 and totaled
over $76,000.
Margo testified that she and her husband have owned and
operated an interior landscaping business in Wichita for 30
years. The corporation is in good standing and has not had any
tax liens or judgments rendered against it.
When asked why she was seeking to be appointed guard-
ian and conservator for Lorine, Margo testified that Lorine
needed her help and that she was trying to do the right thing.
Her first goal would be to ensure that Lorine had enough
assets to pay for her care. Margo believed that Lorine needed
24-hour supervision.
Margo characterized Cheryl’s treatment of Lorine as con-
trolling, demeaning, and disrespectful. According to Margo,
after Lorine was admitted to the hospital for her broken hip,
her hair was matted, she smelled as if she had not taken a bath
in a very long time, and her toenails were an inch long.
At this point in the hearing on the petition, Margo and
Gary rested and Lorine’s attorney called the GAL as her only
witness. The GAL testified that since completing her report,
she had revised her recommendation to be that a neutral third
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Cite as 23 Neb. App. 430party should be appointed guardian and conservator, although
she did not have a specific person in mind. The considerations
supporting the change were that Margo lived out of state and
that there was “a lot of family tension.” She believed that it
might be “a fairly excessive strain” on Lorine to be moved
out of state and that if a family member were appointed, there
would be ongoing disputes. The GAL reiterated that Cheryl
should not remain serving under the powers of attorney; she
noted that Cheryl had not acted in Lorine’s best interests when
handling finances and that Lorine had not received proper den-
tal care under her supervision.
Cheryl testified in her own behalf. She testified that she had
operated a daycare since 1988. After Lorine’s husband died,
Lorine would come to the daycare to read stories to the chil-
dren. For at least 5 years prior to the date of the hearing, dur-
ing which time Lorine suffered from dementia and could not
drive, Cheryl would bring Lorine to the daycare daily, where
Lorine would play with the children, read them stories, and
fold laundry.
According to Cheryl, Lorine decided to move back to the
farmhouse (in 2003) so that she and Cheryl could pool their
resources and take care of each other. Cheryl testified that
she wrote checks out of Lorine’s account for living expenses,
because she and Cheryl “just paid the bills as they needed.”
When asked why the taxes were not paid for Lorine’s prop-
erties, Cheryl explained that it was due to “[l]iving expenses
and trying to make it day-to-day.” She testified, “I’ll admit, I’m
not making good choices. I’m trying to learn from those expe-
riences and make good choices.” She testified that the “state
tax liens” and “tax lien foreclosures” had been resolved using
a combination of Cheryl’s money, Lorine’s money, and loans
from Cheryl’s father.
Cheryl testified that the insurance proceeds from the water
damage to Lorine’s rental home went to paying for new “elec-
trical,” for a new furnace and water heater, and to “adjust the
plumbing.” Prior to the filing of Margo and Gary’s petition,
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Cite as 23 Neb. App. 430Cheryl and Lorine’s plan had been to sell the rental property
to pay the delinquent taxes.
Cheryl testified that she would not remove Lorine from
Mory’s Haven without a doctor’s approval. In anticipation of
Lorine’s possible release, Cheryl had planned on conducting a
home study to determine what was needed for Lorine to live
in the farmhouse. The home study had not been completed, in
part because the physical therapist had recommended waiting
to see how Lorine progressed.
The county court took the matter under advisement and,
on August 1, 2014, issued a written ruling. It first addressed
the appointment of a conservator, finding that there was clear
and convincing evidence that a conservator was necessary.
The court found that Lorine suffered from mental and physi-
cal disabilities that left her unable to manage her property
and that her property would be wasted or dissipated without
proper management. The court rejected Cheryl’s argument
that a conservator was unnecessary in light of her status as
Lorine’s attorney in fact under the power of attorney for asset
management. The court found that Cheryl had “done a poor
job of asset management and quite possibly breached the
fiduciary duty that an agent has toward a principal.” The court
further found that it was in Lorine’s best interests to pass over
Cheryl, even though she had statutory priority for appoint-
ment as Lorine’s conservator. It found that although there
was animosity between Margo and Cheryl, it was in Lorine’s
best interests to appoint Margo, the person with next priority,
as conservator.
Addressing the appointment of a guardian, the court found
that there was clear and convincing evidence that Lorine was
incapacitated. The court then addressed Cheryl’s argument
that a guardian was unnecessary because Cheryl had been
named Lorine’s attorney in fact under the power of attorney
for health care. The court acknowledged that Cheryl was con-
cerned about Lorine’s care, but found that Cheryl had been
“difficult to work with regarding Lorine’s physical placement”
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Cite as 23 Neb. App. 430and that her conduct had resulted in restriction of her visitation
privileges at Mory’s Haven. The court also noted that Cheryl
had “blocked Lorine’s children from obtaining information”
about her health and possibly restricted their contact with
Lorine. The court acknowledged Cheryl’s statutory priority for
appointment as guardian, but found that it was in Lorine’s best
interests to pass over Cheryl and appoint Margo as her guard-
ian. The court found that a full guardianship was “necessary”
and the “least restrictive alternative.” The court listed the pow-
ers conferred upon Margo as guardian, including the power to
arrange for Lorine’s medical care.
On August 15, 2014, letters of guardianship and conserva-
torship were issued. The letters required Margo to obtain court
approval before selling real property belonging to Lorine.
Cheryl timely filed a notice of appeal from the court’s
August 1, 2014, order, which appeal was docketed as case
No. A-14-780. The county court then appointed Margo special
guardian and conservator pending appeal pursuant to Neb. Rev.
Stat. § 30-1601(4) (Cum. Supp. 2014).
Motion for Authority to Act.
On September 24, 2014, Margo filed a “Motion for Authority
to Act” in which she sought court approval for, among other
things, preparing the Mue-Cow property and adjoining farm
parcels for auction “so that the proceeds therefrom may be
used to support” Lorine. The motion indicated that Lorine
had been transferred to an assisted living facility in Wichita.
A separately filed “Application for Withdrawal of Funds”
stated that Lorine’s recurring monthly expenses at the facil-
ity totaled $6,275. An inventory of Lorine’s assets valued the
Mue-Cow property at $110,795, the adjoining 99-acre parcel
at $489,535, the adjoining 48-acre parcel at $67,910, the rental
home in Columbus at $60,000, and the Wagner Lakes cabin
at $46,000.
At the October 23, 2014, hearing on Margo’s motion, Rick
Grubaugh, a real estate broker and auctioneer, testified that
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Cite as 23 Neb. App. 430Margo had contacted him about selling Lorine’s properties.
He testified that the Mue-Cow property could be used for
residential or agricultural purposes but explained that because
the property was in a floodway, an owner could not add to
existing buildings or construct new buildings. He opined that
selling the Mue-Cow property and adjoining parcels of land at
the same time would bring the highest price, because it would
attract the greatest variety of buyers and because advertising
costs would be minimized. In Grubaugh’s opinion, the Mue-
Cow property would not appreciate in value in its current state,
because it needed maintenance. Upon further examination by
the court, Grubaugh admitted that he was “guessing” it would
be advantageous to sell the tracts together and that excluding
the Mue-Cow property from the sale may not have any effect
on the sales prices of the other properties.
Margo testified that in her role as guardian and conserva-
tor, she had obtained a $75,000 loan to pay for Lorine’s nurs-
ing home, medical expenses, taxes, and debts. She had spent
approximately $46,000 of the borrowed funds, and the court
had authorized her to utilize more funds on various expenses.
The remaining funds would cover Lorine’s expenses through
November 2014. Lorine’s only income at that time was Social
Security of $594 per month.
Margo testified that in September 2014, she reviewed Mue-
Cow’s corporate records, including a stock ledger, of which she
created a summary. The stock ledger and summary showed that
as of August 1, Lorine owned 6,799 shares of stock; the only
other shareholder of record was Cheryl’s deceased husband,
Randy, who was listed as the owner of 1,201 shares.
Margo believed that the Mue-Cow property should be sold
because it was “the biggest strain on [Lorine’s] income.”
The property had not produced income in a number of years,
and because Lorine received no rent for the property, she
lost money by retaining it. Margo believed that selling the
Mue-Cow property was in Lorine’s best interests, because
Lorine “desperately need[ed] money . . . to stay in her nursing
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Cite as 23 Neb. App. 430home.” When asked if she understood that as conservator, she
was obligated to take into account any known estate plan,
Margo testified that she was “aware of it” but also was aware
that she needed to “look at [Lorine’s] immediate needs first
and to take care of the best interest of [Lorine].”
On cross-examination, Cheryl’s attorney began asking
Margo about the status of the shareholders in Mue-Cow. The
county court interjected and questioned whether it had author-
ity to address the issue of stock ownership in this proceeding.
During discussion among the attorneys and the court, Cheryl’s
attorney indicated that a belated probate estate may have to
be opened to address ownership of the shares recorded in
Randy’s name.
Gary testified that based on his review of Mue-Cow’s
records and income for the prior 5 years, he did not believe
that it would produce any income that could be used for
Lorine’s support.
Margo and Gary rested, and Cheryl called a real estate
broker who testified that he had viewed the properties. The
broker did not believe that selling the Mue-Cow property with
Lorine’s other properties would increase the sale prices.
Cheryl testified that she was willing to pay the Mue-Cow
property’s expenses, including utilities and maintenance, so
that the property would not be a financial drain. Cheryl then
offered into evidence a copy of Lorine’s will, which the parties
had previously filed with the court pursuant to a joint stipula-
tion. The will specifically devised to Cheryl Lorine’s personal
property, farm machinery, equipment, and livestock; Lorine’s
shares in Mue-Cow, including any real estate owned by Mue-
Cow; and Lorine’s interest in the lease of the Wagner Lakes
lot and the cabin on the lot. Lorine’s residuary estate was
divided equally between Margo, Gary, and Cheryl.
At the conclusion of the hearing, the court granted Margo’s
motion, authorizing her to sell the Mue-Cow property and
adjoining parcels of land. The court indicated that it found
persuasive Grubaugh’s testimony regarding the advisability
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Cite as 23 Neb. App. 430of selling the properties at the same time. The court’s ruling
granting the motion was memorialized in a journal entry and
order filed October 23, 2014.
Cheryl timely filed a notice of appeal from the court’s order,
which appeal was docketed as case No. A-14-971.
On Cheryl’s motion, this court consolidated Cheryl’s appeals
for briefing and decision and allowed the supersedeas bond
that she filed on appeal in case No. A-14-780 to serve as the
supersedeas bond in the consolidated appeals. Cheryl requested
that her supersedeas bond suspend the court’s October 23,
2014, order only insofar as it authorized Margo to sell the
Mue-Cow property.
ASSIGNMENTS OF ERROR
Cheryl assigns that the county court erred in (1) determin-
ing that the appointment of a guardian for Lorine was the least
restrictive means of providing for her care; (2) determining
that it was in Lorine’s best interests not to appoint Cheryl as
her guardian despite Cheryl’s statutory priority for appoint-
ment; (3) determining that the appointment of a conservator
was necessary to manage Lorine’s property; (4) determining
that it was in Lorine’s best interests not to appoint Cheryl as
her conservator despite Cheryl’s statutory priority for appoint-
ment; (5) appointing Margo, rather than a neutral third party,
as guardian and conservator; and (6) authorizing Margo to sell
the Mue-Cow property.
STANDARD OF REVIEW
[1,2] An appellate court reviews guardianship and conserva-
torship proceedings for error appearing on the record made in
the county court. In re Guardianship of Benjamin E., 289 Neb.
693, 856 N.W.2d 447 (2014). 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.- 447 -
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Cite as 23 Neb. App. 430ANALYSIS
Appointment of Margo as Guardian.
In support of her first and second assignments of error,
Cheryl argues that because she was Lorine’s attorney in fact
under the power of attorney for health care, either no guardian
was necessary or she had statutory priority for appointment.
Cheryl contends that she “should be allowed to continue to act
as attorney in fact for healthcare unless good cause is shown to
the contrary.” Brief for appellant at 14. Further, Cheryl states
that appointing a guardian for Lorine is not “the least restric-
tive alternative available for providing her continuing care and
supervision.” Id. at 15.
We first address whether the county court erred in not per-
mitting Cheryl to continue to act as Lorine’s attorney in fact for
health care. A power of attorney for health care is a document
executed in accordance with Neb. Rev. Stat. §§ 30-3401 to
30-3432 (Reissue 2008) that authorizes a designated attorney
in fact to make health care decisions for the principal when
the principal is incapable. § 30-3402(10). Health care deci-
sions include “consent, refusal of consent, or withdrawal of
consent to health care.” § 30-3402(5). “Health care” means
“any treatment, procedure, or intervention to diagnose, cure,
care for, or treat the effects of disease, injury, and degenera-
tive conditions.” § 30-3402(4). A health care power of attorney
becomes effective upon a determination pursuant to § 30-3412
that the principal is incapable of making health care decisions.
§ 30-3411. The attorney in fact has a duty to consult with med-
ical personnel and make health care decisions in accordance
with the principal’s wishes or, if his or her wishes are unknown
and cannot with reasonable diligence be ascertained, with the
principal’s best interests. § 30-3418(1).
[3,4] By comparison, a court may appoint a guardian under
Neb. Rev. Stat. § 30-2620(a) (Cum. Supp. 2014) if it is sat-
isfied 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
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Cite as 23 Neb. App. 430alternative available for providing continuing care or super-
vision of the person alleged to be incapacitated. The persons
eligible for appointment as guardian, as well as their respec-
tive priorities, are described in Neb. Rev. Stat. § 30-2627(Reissue 2008). Pertinent here, a person nominated by the
incapacitated person in a power of attorney, or a person act-
ing under a power of attorney, has first priority for appoint-
ment, while an adult child of the incapacitated person has
third priority. § 30-2627(b)(1) and (3). If it is in the best
interest of the ward, a court may pass over a person having
priority and appoint a person having lower or no priority.
§ 30-2627(c).
Unless limited by the court, a guardian appointed pursu-
ant to § 30-2620(a) has the same powers, rights, and duties
respecting the ward that a parent has respecting an unemanci-
pated minor child. Neb. Rev. Stat. § 30-2628(a) (Cum. Supp.
2014). Those powers and duties include having custody of the
ward and establishing the ward’s place of abode; making provi-
sion for the care, comfort, and maintenance of the ward; and
giving any consents or approvals necessary to enable the ward
to receive medical or other professional care, counsel, or treat-
ment. § 30-2628(a)(1) through (3).
[5] If a guardian has been appointed and an attorney in
fact has been designated and authorized under a valid power
of attorney for health care, the attorney in fact’s authority to
make health care decisions supersedes the guardian’s author-
ity to make such decisions. The guardianship statute provides
that nothing in a guardian’s power “shall be construed to alter
the decisionmaking authority of an attorney in fact designated
and authorized under sections 30-3401 to 30-3432 to make
health care decisions pursuant to a power of attorney for
health care.” § 30-2628(c). Similarly, the statute governing
health care powers of attorney provides that unless the power
of attorney provides otherwise, a valid power of attorney
for health care supersedes any guardianship or conservator-
ship proceedings to the extent the proceedings involve the
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Cite as 23 Neb. App. 430right to make health care decisions for the protected person.
§ 30-3420(5)(b) and (c).
As applied to the case before us, these statutes would per-
mit the county court to appoint a guardian under § 30-2620(a)
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 supervi-
sion of the person alleged to be incapacitated. Further, the
county court could pass over Cheryl, a person having priority,
and appoint Margo, a person having lower priority, if it was in
Lorine’s best interests.
[6] These statutes, therefore, permit the coexistence of a
guardian and an attorney in fact for health care, but the statutes
also make it clear that the authority of the attorney in fact for
health care supersedes a guardian’s authority when it comes to
making health care decisions for the protected person. In the
present case, this would mean that despite the county court
appointing Margo as guardian, for matters related to Lorine’s
health care, Cheryl still retained the ultimate authority over
health care decisions if her health care power of attorney
remained intact. Importantly, however, the statutes discussed
above do not preclude a court from considering a ward’s best
interest and revoking or setting aside a health care power of
attorney in favor of a guardianship when the facts support
such action.
[7] In re Trust Created by Nabity, 289 Neb. 164, 854 N.W.2d
551 (2014), provides such an example. In 1998, a woman
executed a power of attorney for health care designating her
two daughters as attorneys in fact. After the woman was diag-
nosed with Alzheimer’s disease in 2011, her son petitioned
for appointment of a guardian and conservator. One daughter
objected on the basis that she was the woman’s attorney in fact,
and the son moved for a determination of the validity of the
power of attorney. Following a hearing, the court set aside the
1998 health care power of attorney pursuant to § 30-3421(1)(d),
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Cite as 23 Neb. App. 430which provides that a court can revoke a power of attorney for
health care upon finding (1) that the attorney in fact has vio-
lated, failed to perform, or is unable to perform the duty to act
in a manner consistent with the principal’s wishes or, when the
principal’s wishes are unknown, in the principal’s best inter-
est and (2) that the principal lacks the capacity to revoke the
power of attorney. The court reasoned that the daughters had
failed to act in the woman’s best interests by not acknowledg-
ing the severity of her condition, not obtaining proper medical
care or abiding by physicians’ recommendations, and allowing
her to make her own health care decisions. After revoking the
power of attorney, the court appointed a guardian and conser-
vator for the woman.
The Nebraska Supreme Court affirmed the decision to revoke
the power of attorney, determining that the court’s finding that
the daughters had not acted in the woman’s best interests was
“amply supported by the evidence.” In re Trust Created by
Nabity, 289 Neb. at 181, 854 N.W.2d at 564. The Supreme
Court also rejected the objecting daughter’s argument that the
1998 health care power of attorney should have superseded
the guardianship, reasoning that there was no valid power of
attorney for health care because it was properly set aside. In re
Trust Created by Nabity, supra.
Although in the case before us, the county court did not
expressly revoke the power of attorney for health care prior to
appointing a guardian, as the court did in In re Trust Created
by Nabity, its decision to pass over Cheryl for appointment
as guardian involved consideration of the same factors nec-
essary to revoking or setting aside a power of attorney. In
finding that it was in Lorine’s best interests to pass over
Cheryl for appointment, the court in essence determined that
Cheryl had failed to act or was unable to act in Lorine’s best
interests in her role as attorney in fact for health care, which
is consist­ent with the provision in § 30-3421(1) authoriz-
ing a court to revoke a power of attorney for health care
upon such a finding. The court’s finding was supported by
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Cite as 23 Neb. App. 430competent evidence, including that (1) Cheryl’s disruptive
conduct while Lorine was at Mory’s Haven resulted in her
visitation privileges’ being limited, which Groteluschen tes-
tified had occurred only one other time in her 11 years at
Mory’s Haven; (2) when Lorine was admitted to the hospital
in March 2014 for her broken hip, her hair was matted, she
smelled as if she had not taken a bath in a very long time, and
her toenails were an inch long; and (3) although Lorine’s den-
tal problems began before the health care power of attorney
was signed or became effective, Cheryl had not ensured that
Lorine received proper dental care even after Lorine began
suffering from Alzheimer’s disease and dementia, which the
record reflects had reached a moderate to severe level by the
time Lorine was admitted to Mory’s Haven.
A reading of the court’s order in light of this evidence
makes it clear that in deciding to pass over Cheryl for the
appointment, the court was focused on Cheryl’s ability to
fulfil her duties as Lorine’s attorney in fact for health care.
Notably, after finding that it was in Lorine’s best interests to
appoint Margo as guardian despite Cheryl’s statutory prior-
ity for appointment, the court explicitly granted Margo the
power to arrange for Lorine’s medical care. Such a determina-
tion necessarily indicates that the court was setting aside or
invalidating Cheryl’s health care power of attorney in favor of
Margo having a guardianship with full authority for health care
decisions. While not articulated as precisely as may be pre-
ferred, the court’s decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
Cheryl also argues that the county court erred in determin-
ing that the appointment of a guardian for Lorine was the least
restrictive means of providing for her care. Under the circum-
stances of this case, for the county court to determine that a
guardianship was not the least restrictive alternative avail-
able, the court would have had to find that Cheryl was able
to care for Lorine in her capacity as Lorine’s attorney in fact
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Cite as 23 Neb. App. 430for health care. However, as stated, the evidence supported the
contrary finding, and the court therefore did not err in deter-
mining that a full guardianship was “necessary” and “the least
restrictive alternative” and did not err in passing over Cheryl
for the appointment. See In re Trust Created by Nabity, 289
Neb. 164, 183, 854 N.W.2d 551, 565 (2014) (“[g]iven that
[the proposed ward] cannot make decisions for herself, there is
clear and convincing evidence that a permanent guardianship
is necessary and is the ‘least restrictive alternative available
for providing continuing care’ for her”).
We disagree with Cheryl that In re Guardianship &
Conservatorship of Hartwig, 11 Neb. App. 526, 656 N.W.2d
268 (2003), compels a different result. In 1992, prior to the
effective date of the health care power of attorney statute, a
woman executed a power of attorney designating her adult son
as her attorney in fact for property and health care decisions.
In 1998, after the woman showed signs of dementia, she was
placed at a health care center where the son visited her on a
daily basis and had a good relationship with her. The evidence
established that the son and the nursing home staff adequately
cared for the woman. When her grandson successfully peti-
tioned for a guardianship and conservatorship in 2001, result-
ing in the termination of the son’s authority under the power
of attorney, this court reversed, and restored the son’s authority
because there was no evidence that the woman was not receiv-
ing proper care.
In re Guardianship & Conservatorship of Hartwig is dis-
tinguishable from our case. Lorine was admitted to Mory’s
Haven for rehabilitation following her surgery for her broken
hip. Although her immediate medical needs may have been
addressed, it was imminent that a permanent placement would
need to be chosen for her, and there were legitimate concerns
about Cheryl’s ability to make that decision in Lorine’s best
interests. As discussed, the concerns arose out of Cheryl’s
treatment of Lorine at Mory’s Haven, Cheryl’s behavior that
resulted in her visitation privileges’ being restricted, and other
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Cite as 23 Neb. App. 430evidence that Lorine had not been properly cared for while
under Cheryl’s supervision. Although Cheryl testified that she
would not move Lorine back to the farmhouse without a phy-
sician’s approval, there was evidence that Cheryl had begun
investigating ways for Lorine to return there. In contrast to In
re Guardianship & Conservatorship of Hartwig, at the time
Margo and Gary filed the petition to appoint a guardian and
conservator, Lorine was not well settled in a nursing facility
with her care and support adequately provided for into the
foreseeable future.
Appointment of Margo as Conservator.
In support of her third and fourth assignments of error,
Cheryl argues that Margo and Gary failed to prove by clear and
convincing evidence that Lorine’s property would be wasted
or dissipated if a conservator were not appointed. She further
argues that as Lorine’s attorney in fact under the power of
attorney for asset management, she had priority for appoint-
ment as conservator.
[8] Under Neb. Rev. Stat. § 30-2630(2) (Reissue 2008), a
court may appoint a conservator to manage a person’s estate
and property affairs if satisfied by clear and convincing evi-
dence that (1) the person is unable to manage his or her
property and property affairs effectively for reasons including
mental illness, mental deficiency, or physical illness or dis-
ability and (2) the person has property that will be wasted or
dissipated unless proper management is provided, or funds
are needed for the support, care, and welfare of the person
and protection is necessary or desirable to obtain or provide
the funds.
[9] Pertinent here, a person nominated in a power of attor-
ney or acting under a power of attorney has first priority for
appointment as conservator, while an adult child has fifth pri-
ority. Neb. Rev. Stat. § 30-2639(b)(1) and (5) (Reissue 2008).
If it is in the best interest of the protected person, a court
may pass over a person having priority and appoint a person
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Cite as 23 Neb. App. 430having lower or no priority. § 30-2639(c). A conservator’s
powers are listed in Neb. Rev. Stat. §§ 30-2653 and 30-2654
(Reissue 2008) but may be limited by the court. Neb. Rev. Stat.
§ 30-2655 (Cum. Supp. 2014).
The Nebraska Uniform Power of Attorney Act applies to
powers of attorney, other than health care powers of attorney
(Neb. Rev. Stat. § 30-4003(2) (Cum. Supp. 2014)), “cre-
ated before, on, or after January 1, 2013” (Neb. Rev. Stat.
§ 30-4045(1) (Cum. Supp. 2014)). The act authorizes a prin-
cipal to nominate a conservator or guardian in his or her
power of attorney for consideration by the court in the event
that protective proceedings for the principal’s estate or person
are commenced. Neb. Rev. Stat. § 30-4008(1) (Cum. Supp.
2014). A person appointed guardian or conservator has the
same power to revoke or amend the power of attorney that
the principal would have had if he or she were not disabled
or incapacitated. § 30-4008(2). (We note that the health care
power of attorney statute discussed previously contains no
similar provision permitting a guardian or conservator to
revoke the power of attorney for health care. See §§ 30-3401
to 30-3432.)
In re Conservatorship of Anderson, 262 Neb. 51, 628
N.W.2d 233 (2001), provides an example of when a conserva-
torship may be necessary despite the existence of a power of
attorney. In that case, a man appointed his daughter and son-
in-law as his attorneys in fact in a durable power of attorney.
After November 1998, when the man was admitted to a nursing
facility, the daughter and son-in-law took over management of
his property and affairs. In the following 2 years, the daughter
and son-in-law made gifts from the estate to themselves and
their children. After two of the man’s grandchildren petitioned
for appointment of a conservator for him, the court appointed a
bank, a neutral third party, as conservator.
[10] The Nebraska Supreme Court affirmed, reasoning that
by making gifts to themselves from the estate, the daughter
and son-in-law had violated their fiduciary duties as attorneys
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Cite as 23 Neb. App. 430in fact and had shown that the man’s assets would be wasted
or dissipated unless a conservator were appointed. Id. The
court explained that an attorney in fact is obligated to act
solely for the benefit of the principal and agreed with the trial
court’s finding that given the daughter and son-in-law’s self-
dealing, a conservatorship was necessary despite the existence
of the power of attorney. Id. The court also upheld the finding
that it was in the man’s best interests to pass over the daughter
and son-in-law when appointing a conservator, despite their
statutory priority for appointment. Id.Although Cheryl might not have made gifts to herself from
Lorine’s estate, the same result that was reached in In re
Conservatorship of Anderson is warranted here. The durable
power of attorney for asset management executed by Lorine in
March 2006 became effective immediately. The GAL indicated
that Cheryl did not understand her fiduciary duties as Lorine’s
attorney in fact, and Cheryl’s actions confirm this. Cheryl was
first listed on Lorine’s bank account in September 2011 and
began signing checks out of the account shortly thereafter.
A number of checks written to “‘Cash’” were unexplained.
According to Margo, in 1 month, Cheryl wrote $2,000 in
checks to a grocery store; Cheryl also wrote checks for car
insurance after Lorine was unable to drive and checks for
groceries and for discount store purchases after Lorine was
admitted to Mory’s Haven. All of these expenses, while not
necessarily gifts to Cheryl from Lorine’s estate, raise questions
about Cheryl’s ability to act solely for Lorine’s benefit when
managing Lorine’s property.
More significant, however, is what Cheryl failed to do with
Lorine’s property while acting as her attorney in fact. During
the time Cheryl was acting under the power of attorney for
asset management, Lorine’s property taxes became delinquent,
the resulting tax liens were sold, and the purchasers of the tax
liens instituted five foreclosure cases in Platte County against
Lorine’s properties. When asked about the delinquent taxes,
Cheryl testified that they had resulted from “[l]iving expenses
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Cite as 23 Neb. App. 430and trying to make it day-to-day.” She further testified that she
had not been “making good choices” and that she was “trying
to learn from those experiences and make good choices.” In
essence, rather than ensure that Lorine’s assets were used to
fund her care and support, Cheryl risked losing Lorine’s prop-
erty in foreclosure actions by failing to see to it that Lorine’s
property taxes were paid.
Based on the foregoing, the county court’s finding that
Lorine’s property would be wasted or dissipated unless proper
management were provided was supported by competent evi-
dence, as was its finding that it was in Lorine’s best inter-
ests to pass over Cheryl despite her statutory priority for
appointment.
Appointment of Neutral Third Party.
Cheryl’s fifth assignment of error is that the county court
should have passed over Margo and appointed a neutral third
party as guardian and conservator. Cheryl’s only argument in
support of this assignment is that the GAL “was certainly cor-
rect in her judgment” when she recommended that a neutral
party be appointed guardian and conservator due to the poten-
tial for family disputes. Brief for appellant at 24.
As noted above, in appointing a guardian or conservator, a
court may bypass a person with priority and appoint a person
with lower or no priority, if it is in the protected person’s
best interest. §§ 30-2627(c) and 30-2639(c). Other than some
animosity between Margo and Cheryl, however, there was
nothing indicating that it was in Lorine’s best interests to
pass over Margo and appoint a neutral third party as guardian
and conservator. Bougger testified that when Margo was at
Mory’s Haven, Lorine was content and peaceful, and Bougger
described Margo as open, conscientious, and appropriately
concerned about Lorine’s care. Similarly, Groteluschen testi-
fied that Margo was very caring with Lorine. Once Margo was
appointed temporary guardian and conservator, she quickly
began taking steps to properly manage Lorine’s property,
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Cite as 23 Neb. App. 430including securing insurance policies for her properties. Margo
had experience in managing assets and making financial deci-
sions by virtue of running her own business in Wichita for
30 years, which business was in good standing and had
not had any tax liens or judgments rendered against it. The
court’s decision to appoint Margo, rather than a neutral third
party, as guardian and conservator was supported by compe-
tent evidence.
Authority to Sell Mue-Cow Property.
Cheryl’s sixth assignment of error is that the county court
erred in authorizing Margo to sell the Mue-Cow property.
Cheryl contends that by authorizing the sale, the court failed
to take into account Lorine’s will, in which she specifically
devised the property to Cheryl. Cheryl also argues that she is a
minority shareholder in Mue-Cow, such that the court’s order
essentially authorized Margo to sell property that did not solely
belong to Lorine.
Cheryl’s argument concerning Lorine’s will is based on
Neb. Rev. Stat. § 30-2656 (Reissue 2008), which provides that
in selecting the assets of the estate for distribution and utiliz-
ing the powers of revocation or withdrawal available for the
support of the protected person, a conservator and the court
“should take into account any known estate plan of the pro-
tected person, including his will.” The Uniform Probate Code
contains a nearly identical provision, the comment to which
explains that “by allowing the conservator access to the estate
plan, the risk of inadvertent sales of specifically devised prop-
erty and the difficult ademption problems such sales often cre-
ate may be avoided.” Unif. Probate Code § 5-418, comment, 8
(part III) U.L.A. at 109 (2013).
[11,12] A specific devise is a provision in a will that passes
a particular piece of property. See Black’s Law Dictionary 547
(10th ed. 2014). When specifically devised property ceases
to be part of the estate at the time of the testator’s death,
“ademption” occurs. See In re Estate of Bauer, 270 Neb.
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Cite as 23 Neb. App. 43091, 95, 700 N.W.2d 572, 577 (2005). One type of ademp-
tion, called “ademption by implied revocation,” occurs when
specifically devised property is sold during the testator’s life-
time. Id. This type of ademption is “‘“based upon a presumed
alteration of intention arising from the changed condition and
circumstances of the testator, or on the presumption that the
will would have been different had it been executed under the
altered circumstances.”’” Id. at 95-96, 700 N.W.2d at 577,
quoting In re Estate of Poach, 257 Neb. 663, 600 N.W.2d
172 (1999).
[13] In Nebraska, the common-law doctrine of ademption
has been modified by statute under certain circumstances.
In re Estate of Bauer, supra. Pertinent here, Neb. Rev. Stat.
§ 30-2346(a) (Reissue 2008) provides that “[i]f specifically
devised property is sold by a conservator or guardian . . . the
specific devisee has the right to a general pecuniary devise
equal to the net sale price.” In other words, when a conser-
vator or guardian, not the testator, sells specifically devised
property during the testator’s lifetime, no ademption occurs.
The proceeds of the sale are not included in the testator’s
residuary estate, but, rather, are given to the specific devi-
see to honor the specific devise. As applied here, § 30-2346
means that even if Margo were to sell the Mue-Cow prop-
erty during Lorine’s lifetime, Cheryl would still receive the
net sale price of the property as her specific devise upon
Lorine’s death, assuming that sufficient funds remained in
Lorine’s estate.
The rationale underlying § 30-2346 is apparent. When a
conservator or guardian sells specifically devised property, the
presumption that a testator’s intent has changed, or that the
will would have been different under the altered circumstances,
does not apply. As one court explained when addressing the
effect of a conservator’s sale of specifically devised property,
“[t]o allow the sale of . . . various articles of personal property
to work an ademption would be to give the court powers to
alter and amend the Will of the testatrix and thereby defeat her
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Cite as 23 Neb. App. 430testamentary intent.” Will of Clark, 90 Misc. 2d 925, 930, 396
N.Y.S.2d 593, 596 (N.Y. Sur. Ct. 1977).
[14,15] Understanding § 30-2346 and its rationale helps to
inform our analysis of what it means for a conservator and
the court to fulfil their duty pursuant to § 30-2656 to “take
into account any known estate plan of the protected person.”
By enacting § 30-2346, the Legislature provided protection
to specific devises in the estate plans of incapacitated per-
sons subject to guardianships and conservatorships. Given the
heightened protection that specific devises receive by statute,
it would seem that a conservator taking into account a pro-
tected person’s “known estate plan” should invade specifically
devised property as a last resort, and only when doing so is
clearly necessary for the protected person’s care and sup-
port. See § 30-2656. Where, as here, there is ample property
in a protected person’s estate that can be sold to adequately
fund the protected person’s care without invading specifically
devised property, the conservator and the court should not sell
the specifically devised property unless circumstances clearly
establish that it is in the protected person’s best interests to
do so. See In re Guardianship & Conservatorship of Garcia,
262 Neb. 205, 631 N.W.2d 464 (2001) (describing standard for
assessing conservator’s exercise of power as whether there is
clear and convincing evidence that conservator’s actions are in
best interests of protected person).
Applying these principles here, we conclude that it was error
for the county court to authorize Margo to sell the Mue-Cow
property. At the time of the hearing on Margo’s “Motion for
Authority to Act,” the court had before it the estimated values
of Lorine’s property, which included the Mue-Cow property,
valued at $110,795; the adjoining 99-acre parcel, valued at
$489,535; the adjoining 48-acre parcel, valued at $67,910;
the rental home in Columbus, valued at $60,000; and the
Wagner Lakes cabin, valued at $46,000. Lorine’s recurring
monthly expenses at her nursing facility totaled $6,275, which
meant that selling the 99-acre parcel, the 48-acre parcel, and
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Cite as 23 Neb. App. 430the rental home in Columbus for a total of $617,445 would
have funded Lorine’s care for 98 months, or over 8 years.
Neither the 99-acre parcel, the 48-acre parcel, nor the rental
home in Columbus was specifically devised in Lorine’s will,
which meant that selling them would have had little to no
effect on her estate plan. In short, there was ample property in
Lorine’s estate that could have been sold to adequately fund
Lorine’s care for a number of years without invading specifi-
cally devised property.
Furthermore, Margo and Gary did not establish by clear
and convincing evidence that despite the ample assets avail-
able for Lorine’s care, it was in Lorine’s best interests to
sell the specifically devised property. The evidence that the
county court relied upon in authorizing the sale of the Mue-
Cow property was Grubaugh’s testimony that selling all of the
properties together would generate the highest sales prices.
However, upon questioning by the court, Grubaugh admit-
ted that he was “guessing” it would be advantageous to sell
the tracts together and that excluding the Mue-Cow property
from the sale may not have any effect on the sales prices of
the other properties. Even assuming that it would have had
some effect, the benefit of selling the properties together had
to be balanced against the goal of protecting Lorine’s estate
plan. Given the significant values of Lorine’s properties that
were not specifically devised in her will, any marginal benefit
that may have been realized by selling all of the properties
together did not justify invading the specifically devised prop-
erty, especially given Grubaugh’s equivocal testimony. While
Lorine’s circumstances may very well change in the future,
rendering it necessary to sell the Mue-Cow property, those
circumstances did not exist at the time of the hearing. We also
note that although Margo testified that the Mue-Cow prop-
erty was a “strain” on Lorine’s estate, Cheryl testified to her
willingness to pay all of the Mue-Cow property’s expenses
while she lived on the property, which would eliminate any
financial drain.
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Cite as 23 Neb. App. 430Because we have concluded that the county court erred in
authorizing Margo to sell the Mue-Cow property, we need
not address Cheryl’s argument concerning her alleged minor-
ity ownership of Mue-Cow. See Hall v. County of Lancaster,
287 Neb. 969, 846 N.W.2d 107 (2014) (appellate court is not
obligated to engage in analysis which is not needed to adju-
dicate case and controversy before it). For the reasons stated,
we reverse the October 23, 2014, order insofar as it authorized
Margo to sell the Mue-Cow property.
CONCLUSION
For the reasons explained above, we affirm the order appoint-
ing Margo guardian and conservator for Lorine in case No.
A-14-780 and reverse the order in case No. A-14-971 insofar
as it authorized Margo to sell the Mue-Cow property; because
Cheryl did not challenge any other aspect of the order in case
No. A-14-971, we affirm the remainder of the order.
Judgment in No. A-14-780 affirmed.
Judgment in No. A-14-971 affirmed in part,
and in part reversed.