In re Conservatorship of Franke, 292 Neb. 912

Background

In 2013 Laurie Berggren petitioned for conservatorship of her mother, Genevieve Franke, alleging Genevieve was being pressured to sell farmland to son John Franke at below‑market price; the county court appointed Cornerstone Bank as permanent conservator after an evidentiary hearing.
John objected at the county court, requested an evidentiary hearing, and later appealed the conservatorship appointment.
After the appeals were docketed, counsel for Genevieve filed a suggestion of Genevieve’s death (Dec. 31, 2014).
Genevieve’s attorney nevertheless filed an appellate brief seeking dismissal of the appeal as moot and vacatur of the conservatorship orders; John sought revival of his appeal and alternatively argued that the death required vacatur of the county court orders.
The Supreme Court addressed (1) whether Genevieve’s counsel could continue representing a deceased client on appeal, (2) whether John had standing to appeal, (3) whether John’s appeal was abated by Genevieve’s death, and (4) whether Genevieve’s death required vacatur of the county court’s conservatorship orders.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Can deceased Genevieve be represented on appeal by her attorney absent authorization from a personal representative?	(Genevieve via counsel) Counsel continued to pursue appeal and urged dismissal/vacatur despite death.	Opponents argued counsel lacked authority because representation ends at client’s death unless authorized.	Counsel lacked standing; attorney cannot continue appeal absent statutory authorization or appointment of a representative; Genevieve’s appeal dismissed.
2. Does John have standing to appeal the conservatorship appointment?	John asserted he objected at trial and therefore §30‑1601(2) permits his appeal.	County/appellees did not dispute his objector status but limited scope of appeal.	John has standing under §30‑1601(2) as a nonparty who objected and was affected, but standing is limited to challenging the conservatorship determination (need for conservator).
3. Did Genevieve’s death abate John's appeal?	John conceded the competency issue became moot but argued abatement should invalidate prior orders (vacatur).	Appellees argued death moots the competency issue and thus abates appeal but does not vacate prior orders.	Death abated John’s appeal because the conservatorship‑need issue is moot; appeal dismissed as to merits.
4. Did Genevieve’s death abate the underlying cause of action and require vacatur of the county court’s conservatorship orders?	John argued death abated the entire cause and trial court orders must be vacated.	Appellees argued the cause and final orders survive death and conservator duties/liability continue for pre‑death acts; vacatur is not required.	Death does not abate the cause of action nor affect the validity of the final conservatorship orders; vacatur not required.

Key Cases Cited

In re Guardianship & Conservatorship of Barnhart, 290 Neb. 314 (Neb. 2015) (standards for appellate review of guardianship/conservatorship proceedings)
Sherman v. Neth, 283 Neb. 895 (Neb. 2012) (addressing effect of death pending appeal in administrative/license context)
Westphalen v. Westphalen, 115 Neb. 217 (Neb. 1927) (early treatment of death pending appeal in dissolution context)
Jacobson v. Nemesio, 204 Neb. 180 (Neb. 1979) (probate appeal died with appellant; discussion of survival of personal claims)
In re Guardianship & Conservatorship of Trobough, 267 Neb. 661 (Neb. 2004) (conservator duties and post‑death liabilities)
In re Estate of Stephenson, 243 Neb. 890 (Neb. 1993) (statutory changes affecting survival and probate revival procedures)