In re Conservatorship of Franke, 875 N.W.2d 408

Background

Genevieve Franke (age 90) lived in a nursing home; daughter Laurie petitioned for a conservator in 2013 after Genevieve agreed to sell farmland to son John at a price well below appraised value.
County court appointed Laurie as temporary conservator to prevent the sale, then after an evidentiary hearing appointed Cornerstone Bank as permanent conservator.
Genevieve and John both appealed the conservatorship appointment; before briefs were filed, Genevieve died (Dec. 31, 2014) and her counsel filed a suggestion of death.
Genevieve’s attorney moved to dismiss the appeal as moot and to vacate the county court’s conservatorship orders; John moved to revive the appeal or to have the county court vacate its orders if the cause abated.
The Nebraska Supreme Court considered (1) whether Genevieve’s attorney could continue the appeal after her death, (2) whether John had standing to appeal, (3) whether Genevieve’s death abated John’s appeal, and (4) whether her death abated the underlying cause such that lower-court orders must be vacated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. May deceased appellant’s counsel continue appeal without a statutory representative?	Genevieve’s counsel argued he could continue and sought dismissal and vacatur.	Opponents argued counsel lacks authority absent substitution or statutory representative.	Counsel lacked standing; attorney’s authority ends at client’s death absent contractual or representative authorization; appeal by Genevieve dismissed.
2. Does John have standing to appeal the conservator appointment?	John (objector below) contended he could appeal as person affected by final order.	Laurie/others argued only parties or personal representatives may appeal.	John has standing under Neb. Rev. Stat. §30-1601(2) because he objected and requested evidentiary hearing; standing limited to challenge of need for conservator.
3. Did Genevieve’s death abate John’s appeal?	John conceded the competency issue is moot but argued abatement of entire cause requires vacatur of orders.	Others argued death moots the competency issue and abates only the appeal.	Genevieve’s death mooted the competency issue and abated John’s appeal.
4. Did death abate the cause of action and require vacatur of conservatorship orders?	John urged that death abated the whole cause and lower-court orders must be vacated.	Court, Laurie, and others argued death does not void final judgments or the conservator’s appointment; conservator duties and liabilities survive for winding up.	Death does not abate the cause or affect the validity of final orders appointing a conservator; abatement affects only the appeal.

Key Cases Cited

In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314 (Neb. 2015) (standards for reviewing guardianship/conservatorship proceedings)
In re Guardianship of Brydon P., 286 Neb. 661 (Neb. 2013) (appellate review of legal questions)
Sherman v. Neth, 283 Neb. 895 (Neb. 2012) (discussing effect of death on appeals from administrative/license revocation)
In re Guardianship & Conservatorship of Trobough, 267 Neb. 661 (Neb. 2004) (conservator’s obligations survive protected person’s death)
Jacobson v. Nemesio, 204 Neb. 180 (Neb. 1979) (personal rights and survival of cause of action after death)