In re Guardianship of Nicholas H.
309 Neb. 1
| Neb. | 2021Background
- Nicholas H., an adult with severe mental illness, was placed under full guardianship; the Office of Public Guardian (OPG) was appointed guardian in 2016 and designated associate public guardian Stacy Rotherham to act for him.
- Nicholas repeatedly threatened and harassed Rotherham; she obtained a protection order and Nicholas faced contempt and felony terroristic-threats charges; Rotherham stopped contact and contended she could not meet statutory monthly-contact obligations.
- In October 2019 the OPG moved to be discharged under Neb. Rev. Stat. § 30-4117, alleging it could not safely serve Nicholas and proposing his parents as successor coguardians; the parents filed a verified objection, stating they were unwilling and incapable of serving.
- At a December 2019 evidentiary hearing the court found Rotherham should no longer serve and, concluding no other OPG staff were available, granted discharge and named the parents successor coguardians contingent on their acceptance and compliance with filing/training requirements.
- The parents never accepted appointment and instead appealed the county courts order; the Nebraska Supreme Court took the case on its own motion and reversed the discharge of the OPG.
Issues
| Issue | Plaintiff's Argument (Parents) | Defendant's Argument (OPG) | Held |
|---|---|---|---|
| Standing to appeal the county courts order | Parents, as interested persons who objected and were named successor guardians, are directly affected and thus may appeal under the probate appeal statute | OPG: parents lack standing because they were not directly affected by the order | Held: Parents have standing under Neb. Rev. Stat. § 30-1601 as interested persons who were affected by the final order (citing Franke) |
| Can court appoint unwilling private guardians over objection | Parents: courts cannot compel a person to serve as guardian; appointment over objection is unlawful | OPG: appointment order was appropriate as a step toward naming successor guardians | Held: A courts appointment is contingent on voluntary acceptance; unwilling appointees may refuse and letters will not issue, so no reversible error where parents declined acceptance |
| Whether OPG could be discharged under § 30-4117 while ward remains incapacitated and proposed successors are unwilling | Parents: Discharge improper because Nicholas remains incapacitated and OPG had not located a successor who is willing and able to serve | OPG: Discharge justified because Rotherham could not safely fulfill duties and no other OPG staff were available; alternative statutes or removal rules support discharge | Held: Reversed — § 30-4117 permits discharge only if (1) the ward is no longer incapacitated or in need of a guardian, or (2) the OPG has located a successor guardian who is qualified, available, and willing to become guardian; here ward remained incapacitated and proposed successors were unwilling, so discharge was improper |
Key Cases Cited
- In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016) (broad application of probate appeal statute; family members who objected may appeal)
- Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021) (standing is a jurisdictional threshold question of law)
- In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020) (statutory construction principles and giving effect to legislative intent)
- Cox Nebraska Telecom v. Qwest Corp., 268 Neb. 676, 687 N.W.2d 188 (2004) (where statutes conflict, the more specific statute controls)