McCormack, J.
Donald D. Barnhart (Barnhart) is deemed incapacitated and in need of protection. His wife, Alice F. Barnhart, and his stepdaughter, Sherry Heady, petitioned to become his coguardians and coconservators. The guardianship and conservatorship is contested by alleged beneficiaries of Barnhart's prior will. These parties contend that they are interested parties to Barnhart's welfare and, thus, have standing to contest the will. The prior beneficiaries are Valley Lodge 232 A.F. & A.M.; Chrysolite
Barnhart's assets include farmland that has not yet been appraised, but is "in excess of 400 acres" located in Harrison County, Iowa; an investment account valued at $91,000; a checking account valued at $89,000; and a 2007 Honda Accord valued at $7,000.
In 2000, Barnhart executed a will (the 2000 will). At that time, he was not married and did not have any children. The 2000 will left 40 percent of Barnhart's residual and remainder estate to Valley Lodge No. 232 A.F. & A.M., 20 percent of his residual and remainder estate to Chrysolite Lodge No. 420 A.F. & A.M., 20 percent of his residual and remainder estate to Alegent Health Community Memorial Hospital of Missouri Valley, and 20 percent of his residual and remainder estate to the Senior Citizens of Western Harrison County.
In 2003, Barnhart married Alice. As Barnhart's wife, Alice is his closest living relative. Heady is Alice's daughter and is Barnhart's attorney in fact under a durable power of attorney document executed on November 8, 2009.
Barnhart's brother died in 2012. Barnhart's brother left all of his residue to the same organizations named in Barnhart's 2000 will — the objectors in this case. Alice and Heady allege that Barnhart decided he did not want his estate to go the same way as his brother's and decided that instead, he wanted his property to go to Alice.
In November 2012, Barnhart executed a new estate plan, including a will and a trust agreement creating the Donald Barnhart Revocable Trust (2012 estate plan). Alice and Heady are the beneficiaries of the 2012 estate plan. The objectors, beneficiaries of the 2000 will, are not designated as beneficiaries of the 2012 estate plan.
The exact date of Barnhart's incapacity is uncertain, but in affidavits to the court, Heady states that Barnhart was admitted to the hospital in the spring of 2013 with the sudden onset of severe psychological symptoms. At that time, Barnhart was declared a "`danger to himself and others.'" Subsequently, Barnhart was placed in the Douglas County Health Center and remains there to this date. Heady states in her affidavit to the court that Barnhart's condition renders him unable to make "responsible decisions concerning his medical care or his finances."
Heady states that she attends meetings with the professionals at Douglas County Health Center once every 3 months to discuss Barnhart's treatment. Heady also states that she visits Barnhart on a weekly basis.
On November 27, 2013, Alice and Heady petitioned for appointment of emergency temporary and permanent coguardians and coconservators in the county court for Douglas County, Nebraska. On the same date, the petition for temporary coguardianship and coconservatorship was granted by the county court, and Alice and Heady became temporary coguardians and coconservators.
On March 4, 2014, the county court held a hearing on the issue of standing. All parties were asked to brief standing prior to the March 4 hearing. All parties were aware that the purpose of the hearing was to consider the issue of standing. At the hearing, the county court asked for a copy of the current estate documents before making its rulings on standing. The documents were reviewed in camera, and the objectors did not object to the viewing, nor did they proffer any further evidence or ask for a continuance or further hearing to do so.
At the hearing on March 4, 2014, the county court asked the objectors what kind of relationship Barnhart had with the objecting charities. The attorney for the objectors responded that "to be a hundred percent honest with you, I don't know what — how deep the relationship went, but [Barnhart] certainly felt strong enough to make gifts to them." Further, in the objection to the amended petition for appointment of guardianship and conservatorship, it states that the objectors "are without sufficient information and belief regarding the need for a guardian." Instead, the objection states that the reason for the guardianship and conservatorship contest is "[b]ased upon interest and belief [that Barnhart's] estate is being depleted and/or wasted...." At the hearing, the objectors' attorney stated that "we felt we had evidence on the financial side because of land transfers, those kinds of things."
At the conclusion of the March 4, 2014, hearing, the county court stated that if it found the "interested parties" have standing, then it would hold a formal evidentiary hearing, including a pretrial process. All parties at the hearing left the hearing with notice that the court was making its ruling on standing prior to a formal evidentiary hearing, on the basis of the arguments at the hearing and after viewing the 2012 estate plan documents.
After the hearing, on March 12, 2014, the court issued an order finding that the objectors did not have standing to contest the guardianship and conservatorship. The court found that In re Guardianship of Gilmore
Soon after the order was released, the objectors filed a motion to alter or amend judgment on the basis that evidentiary findings were made without an evidentiary hearing. Later, at a hearing on April 2, 2014, the objectors argued that they were entitled to have an evidentiary hearing on the issue of standing. The objectors argued that an evidentiary hearing must be held if the court made its standing ruling on the basis of evidentiary findings.
The objectors explained to the court their concern about evidentiary findings. The attorney for the objectors stated that they were concerned that comments in the
At the April 2, 2014, hearing, the court stated:
The court further explained:
(Emphasis supplied.)
After the April 2, 2014, hearing, the county court issued an order stating that its March 12 order was a ruling only on standing and did not "expand the nature of the proceeding."
The objectors assign as error, restated, as follows: (1) the county court's determination that the objectors did not have standing to challenge the guardianship and conservatorship proceedings, and thus finding that Alice and Heady are proper guardians, and (2) the county court's making of evidentiary findings without an evidentiary hearing.
Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.
An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record in the county court.
The issue in this case is whether or not the objectors are "any person[s] interested
Standing is the legal or equitable right, title, or interest in the subject matter of a controversy.
Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.
The Nebraska guardianship and conservatorship statutes repeatedly use the language "interested in his or her welfare.
It should be noted that this language differs from the other statutes in chapter 30, article 26, of the Nebraska Revised Statutes and that only the statutes dealing with protected persons use some form of the phrase "person interested in the welfare."
Therefore, we must determine who may be a "person interested in the welfare," and thus, has standing to challenge guardianships and conservatorships. In In re Guardianship of Gilmore, the Nebraska Court of Appeals examined this language.
Put more simply, the Court of Appeals said the "statutes are worded to allow people without a legal interest to bring the matter to the local court's attention."
In In re Guardianship of Gilmore, the Nebraska Department of Health and Human Services (DHHS) brought an action seeking to remove the ward's mother as guardian. At the hearing, DHHS presented evidence that the ward's welfare was in danger, including evidence from the ward's doctor and psychologist, the service coordinator for DHHS, and a social worker employed at the ward's school, among other evidence. The mother argued that DHHS did not have standing to bring the action, because DHHS did not qualify as an "interested person" under the guardianship statutes.
We agree with the reasoning in In re Guardianship of Gilmore that, generally, no legal interest in the ward is necessary to contest a guardianship. In contesting a guardianship, an objector must show a true interest or attentiveness to the well-being and protection of the ward. We agree with In re Guardianship of Gilmore that guardianships can be challenged by
There, it was determined that DHHS was a proper person to come forward on a guardianship matter. We approve of the Court of Appeals' decision in In re Guardianship of Gilmore that DHHS had standing in that case. Particularly convincing in that case is that it is DHHS' primary function to care for those whose health and welfare needs protection. Furthermore, DHHS was able to bring forth testimony of people in personal relationships with the ward and those who were concerned for the welfare of the ward. Such personal attentiveness for the ward's welfare must be shown and can be shown by observations by someone with a relationship with the ward or by proffering any evidence to the court that the ward's protection is in danger.
But the objectors here only argued a financial interest in Barnhart's welfare. We hold that in a guardianship or conservatorship proceeding, where an objector has no concerns for the ward's welfare but only concerns of its own potential financial expectancy, such concerns do not give the objector standing to challenge a guardianship or conservatorship as "any person interested in [the ward's] welfare" under § 30-2619 or § 30-2645.
There are limited situations specified by the conservatorship statutes in
Outside of the situation specified in § 30-2633, we have repeatedly explained that a conservatorship proceeding is not an adversarial proceeding. Rather, it is a proceeding to promote the best interests of the person for whom the conservatorship is sought.
We do not hold that potential beneficiaries of a surviving testator under a will never have standing to contest a conservatorship, but merely that the potential beneficiary designation alone is not enough interest to establish standing to contest a conservatorship. Wills, by their nature, are ambulatory.
In In re Guardianship & Conservatorship of Borowiak,
We find that attentiveness for the ward's personal welfare has not been shown or argued in this case on the bases of the pleadings and arguments at the court's hearings and where the arguments were based on the ward's financial situation.
Unlike In re Guardianship of Gilmore, the objecting parties in this case have
The objectors' argument from the beginning was that they are interested in the welfare of Barnhart because they are beneficiaries of his will. In their initial objection, they cited that Barnhart's estate "is being depleted and/or wasted" as the primary reason for their contest. In the initial objection, the objectors stated they were "without sufficient information and belief regarding the need for a guardian."
The county court then held a hearing on standing and made it abundantly clear that it would make its standing decision on the basis of the hearing. Again, at the hearing on standing, the attorney for the objectors stated that "to be a hundred percent honest with you, I don't know what — how deep the relationship went, but [Barnhart] certainly felt strong enough to make gifts to them."
At oral arguments on appeal, the objectors stated, for the first time, that there was a personal relationship between Barnhart and the objectors, because Barnhart had been a mason throughout his life and a member of the masonic lodges that make up two of the four objectors.
New theories cannot be presented on appeal.
Even assuming the objectors are beneficiaries of the will, they still essentially have the same financial interest as any other member in the community until the death of Barnhart. As stated in our holding today, beneficiaries under a will do not have standing to contest a guardianship or conservatorship by virtue of their interests as beneficiaries of the will alone.
Therefore, we affirm the county court's finding that the objectors do not have standing to challenge the conservatorship of Barnhart. In so finding, we also find it was not error for the court to accept Alice and Heady as coguardians and coconservators of Barnhart.
A formal "evidentiary hearing" is not necessary before the court makes a finding in a case. The required procedures may vary according to the interests at stake in a particular context, but the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.
The parties were given the chance to brief the issue of standing prior to the March 4, 2014, hearing. The parties were notified that the county court intended to make its standing ruling on the basis of the arguments presented at the March 4 hearing. If the parties felt they needed to present evidence prior to a ruling on standing, this was the time to make that need known to the court. We assume that because the court agreed to look at the will in camera, it would have agreed to look at other evidence or factual matters in making its standing ruling. The objectors cannot now argue that there was something more they wanted to assert at the hearing. The fact that they had the opportunity to do so at a hearing is enough.
Further, we make this standing finding independently of the lower court and as a matter of law. We rely on no factual findings pertaining to the objectors' interest under Barnhart's will because even assuming they are beneficiaries under the will, that is not enough to give them standing.
For the foregoing reasons, we affirm the judgment of the county court.
AFFIRMED.
Wright, J., participating on briefs.
Miller-Lerman, J., not participating.