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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

In re Guardianship and Conservator

Inez Natalia Stierstorfer, an a

incapacitated and protected 

Megan Malloy, appellee and cross-appellant

Inez Natalia Stierstorfer, appella

cross-appellee, and Mark Malousek

Conservator, et al., appellees

___ N.W.2d ___

Filed May 7, 2019. No. A-17-1232.

1. Guardians and Conservators: Appeal and Error. An appellate court 

reviews guardianship and conservatorship proceedings for error appearing 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 

decision 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) (Reissue 2016) 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. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

Appeal from the County Court for Douglas County: John E

Huber, Judge. Affirmed

D.C. “Woody” Bradford III and Ryan J. Dougherty, of 

Houghton, Bradford & Whitted, P.C., L.L.O., for appellant.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/21/2019 12:07 AM CDT
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

Molly M. Blazek and Alex J. McCarty, Senior Certified 

Law Student, of Blazek Law Group, L.L.C., for appellee 

Megan Malloy.

Pirtle, Riedmann, and Welch,

Pirtle, Judg

INTRODUCTION

Inez Natalia Stierstorfer appeals from an order of the 

Douglas County Court which appointed a conservator for her. 

Megan Malloy cross-appeals, challenging the court’s refusal 

to appoint a guardian for Stierstorfer. Based on the reasons 

that follow, we affirm.

BACKGROUND

On May 15, 2017, Malloy, Stierstorfer’s granddaughter, 

filed a petition for the appointment of an emergency temporary 

guardian and the appointment of a permanent guardian and 

conservator for Stierstorfer. The petition nominated Malloy 

to serve as guardian and conservator. On the same day, the 

trial court entered an order appointing Malloy as temporary 

guardian. On May 30, an expedited hearing was held at the 

request of Stierstorfer. At the hearing, the trial court removed 

Malloy as temporary guardian and appointed Christine Solis 

Sahebjamii, Stierstorfer’s niece, as temporary guardian until a 

trial could be held.

Trial took place in July and August 2017. The evidence 

showed that Stierstorfer was 80 years old at the time the petition 

for conservatorship and guardianship was filed. Stierstorfer has 

two daughters, Inez Elvira Stierstorfer and Renate Stierstorfer 

Campbell. Malloy is Inez Elvira’s daughter.

Stierstorfer’s husband became ill around December 2015 

and died on August 3, 2016. During the fall of 2016, arrangements were made with an attorney to prepare a financial 

power of attorney and a health care power of attorney for 

Stierstorfer, both of which were signed on November 21, 2016. 

The financial power of attorney and the health care power of 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

attorney each named Malloy and Campbell as Stierstorfer’s 

attorneys in fact.

On February 9, 2017, Stierstorfer was evaluated by Dr. 

Heather Morgan, who specializes in geriatric medicine. Morgan 

diagnosed Stierstorfer with “[d]ementia related to Alzheimer’s 

disease” with paranoia, as well as anxiety. She concluded 

that Stierstorfer was unable to independently perform all of 

her instrumental activities of daily living and that Stierstorfer 

required supervision and some assistance with her activities of 

daily living. Morgan further opined that given Stierstorfer’s 

cognitive and functional impairments, she was no longer capable of safely managing her financial and business affairs and 

was also incapable of making informed decisions about her 

health care and general well-being. Morgan recommended that 

Stierstorfer be placed in a facility with a “memory care unit” 

and that her health care power of attorney be activated. At 

the time of Morgan’s evaluation, Stierstorfer was living in the 

home she had shared with her husband before he died.

As a result of Malloy’s and Campbell’s appointment as 

Stierstorfer’s attorneys in fact, they complied with Morgan’s 

recommendation and moved Stierstorfer into a facility with 

a memory care unit on March 20, 2017, choosing Parsons 

House for such care. Subsequent to Stierstorfer’s move to 

Parsons House, Malloy and Campbell engaged an attorney’s 

services to establish a plan to preserve Stierstorfer’s assets. To 

implement such planning, an annuity was purchased to supplement the cost of care at Parsons House for at least 5 years. 

The planning also included transferring Stierstorfer’s assets 

out of her name into a family trust, with Malloy and Campbell 

as trustees. The trust was created so that Stierstorfer’s assets 

could continue to be used for her care and lifestyle and 

would not have to be spent down as a requirement for 

her eligibility for Medicaid. The planning also included a 

transfer of Stierstorfer’s home by quitclaim deed to Malloy 

and Campbell.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

Stierstorfer was unhappy with her placement at Parsons 

House, which placement was not discussed with her before 

she was moved there, and in May 2017, she had a priest pick 

her up at Parsons House and she contacted an attorney.

On May 18, 2017, 3 days after the petition for appointment 

of a guardian and conservator was filed, Stierstorfer underwent an evaluation by Dr. Robert G. Arias, a clinical psychologist and neuropsychologist, to assess her cognitive state, 

whether she had dementia or not, and whether she was capable 

of functioning on her own without a power of attorney or 

legal guardian. As a result of the evaluation, Arias concluded 

that Stierstorfer did not appear to be mentally incapacitated 

in terms of having dementia, incoherence, confusion, or problems with reasoning and that from a strictly cognitive standpoint, she seemed capable of independent living, financial 

management, and medication management. Arias further concluded that Stierstorfer seemed capable of making responsible 

decisions, had no cognitive impairment, and had no pattern of 

paranoid behavior. He testified that Stierstorfer did not present 

as in need of a guardian, a conservator, or an appointed power 

of attorney.

Several witnesses, including Malloy, Campbell, and 

Campbell’s husband testified that prior to Stierstorfer’s husband’s getting sick and during the time he was sick, Stierstorfer 

had gotten increasingly paranoid. She believed people, including family members and neighbors, were breaking into her 

house and moving things around, going through her mail, 

and stealing from her. She also believed that a neighbor was 

spying on her through her bathroom skylight and that another 

neighbor had “bugged” her telephone and was listening to 

her conversations. Stierstorfer also was not taking care of her 

home, and it became increasingly dirty and cluttered. There 

was pet urine and feces throughout the house, there were 

“piles of junk” throughout the house, there was food “in various states of mold,” there was a bathtub full of urine-soaked 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

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cat litter, and the home had a stench of “decay, pet dander, and 

pet feces.”

After her husband got sick, Stierstorfer was also unable 

to manage the payment of bills, had fallen behind on her 

mortgage, and was misplacing her wallet and checkbook. 

Stierstorfer had piles of mail in her home and would not or 

could not distinguish between what was a bill that needed attention and what was junk mail. Malloy testified that Stierstorfer 

would call her in a state of panic saying she was receiving 

final notices and communication from debt collectors. Malloy 

testified that the family was unable to assist Stierstorfer with 

writing checks to pay bills because Stierstorfer frequently lost 

her checkbook. There was also testimony that Stierstorfer had 

discontinued using her prescription eye drops for glaucoma 

and had not seen her eye doctor in several years.

Stierstorfer testified and disagreed with the condition of 

her home as described by witnesses. She believed Malloy and 

Campbell put the trash and pet urine and feces in her home 

to make it appear that she was incapable of taking care of 

herself and her home. She also testified that in the past, she 

believed her neighbor was coming into her home in the middle of the night and stealing her mail. She testified that she 

now believed Malloy had been taking the mail to “incriminate 

[her],” explaining that Malloy was trying to make it appear 

that Stierstorfer had dementia.

Sahebjamii, Stierstorfer’s niece, testified that Stierstorfer 

had been living in an apartment at an independent-living facility and that she had been staying with her since her appointment 

as temporary guardian on May 30, 2017. She testified about 

Stierstorfer’s daily routine at the retirement home and testified 

that she was able to function without assistance throughout her 

day and meet her own basic needs. For example, she testified 

that Stierstorfer got herself ready in the morning and ready for 

bed in the evening, went to meals in the dining area on her 

own, did her own laundry, participated in activities offered 

at the facility, and utilized the transportation offered by the 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

facility. Sahebjamii also testified that Stierstorfer had seen her 

ophthalmologist four times since May 30 for her glaucoma and 

had been using her prescribed eye drops regularly.

Following trial, the court entered an order on August 23, 

2017, finding there was substantial evidence that during a 

period of time when Stierstorfer’s husband was sick and subsequently died, Stierstorfer was unable to provide for her basic 

needs. It further found, based on the testimony of Sahebjamii 

and Arias, that at the time of trial Stierstorfer was in an appropriate facility and was able to meet her own basic needs. It 

noted that she was not living in her own home and no longer 

had animals which were a problem for her in maintaining her 

home. The court denied the motion to appoint a guardian for 

Stierstorfer. The court also found that there was substantial evidence that Stierstorfer had been unable to manage her financial 

affairs for a substantial period of time and was in need of a 

conservator to assist in the managing of her financial affairs. 

Therefore, it granted the motion to appoint a conservator, but 

further found that Malloy and Campbell were not appropriate 

and qualified persons to be appointed.

On September 1, 2017, Stierstorfer filed a motion to reconsider the appointment of a conservator. Malloy subsequently 

filed a petition for the appointment of an emergency temporary guardian, which the court granted.

Following a hearing on Stierstorfer’s motion, the trial 

court entered an order denying the motion to reconsider the 

appointment of a conservator, terminating the temporary 

guardianship, and naming Mark Malousek as conservator. This 

appeal followed.

ASSIGNMENTS OF ERROR

Stierstorfer assigns that the trial court erred in (1) determining that there was substantial evidence that she had been 

unable to manage her financial affairs for a substantial period 

of time and (2) appointing a conservator for her. Stierstorfer 

does not assign error with respect to the court’s ruling on her 

motion to reconsider.
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

On cross-appeal, Malloy assigns that the trial court erred in 

(1) failing to find there was clear and convincing evidence that 

Stierstorfer required the appointment of a guardian, (2) failing 

to find Stierstorfer required a full guardianship, and (3) failing 

to appoint a guardian for Stierstorfer.

STANDARD OF REVIEW

[1,2] An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record made 

in the county court. In re Conservatorship of Gibilisco, 277 

Neb. 465, 763 N.W.2d 71 (2009). 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.

ANALYSIS

Conservatorship.

Stierstorfer argues that the trial court erred in determining 

that there was substantial evidence that she had been unable 

to manage her financial affairs for a substantial period of time 

and as a result, finding that she was in need of a conservator. 

She contends that the court failed to identify any evidence 

it considered in determining she was unable to manage her 

financial affairs and that the record lacks evidence to support 

this determination.

The power of the county court to appoint a conservator for 

an adult is governed by Neb. Rev. Stat. § 30-2630(2) (Reissue 

2016), which provides:

Appointment of a conservator or other protective order 

may be made in relation to the estate and property affairs 

of a person if the court is satisfied by clear and convincing evidence that (i) the person is unable to manage his or 

her property and property affairs effectively for reasons 

such as mental illness, mental deficiency, physical illness 

or disability, chronic use of drugs, chronic intoxication, 

confinement, or lack of discretion in managing benefits 
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received from public funds, detention by a foreign power, 

or disappearance; and (ii) the person has property which 

will be wasted or dissipated unless proper management is 

provided, or that funds are needed for the support, care, 

and welfare of the person or those entitled to be supported by him or her and that protection is necessary or 

desirable to obtain or provide funds.

Stierstorfer argues that Arias’ testimony clearly established 

that the appointment of a conservator was not necessary. Arias 

found that Stierstorfer was capable of making responsible 

decisions regarding person and property, was not in need of 

a guardian or a conservator, and was capable of independent 

living, financial management, and medication management. 

However, Morgan concluded that due to Stierstorfer’s diagnosis of dementia related to Alzheimer’s disease, she could no 

longer manage her financial and business affairs.

In addition to Morgan’s opinion, there was competent evidence to show that Stierstorfer could not manage her finances 

from the time her husband got sick to the time of trial. Several 

family members testified about Stierstorfer’s inability to manage her property affairs effectively. There was testimony that 

she did not keep her bills organized and did not know what 

bills needed to be paid or how to pay them. She would also 

lose or misplace bills, and her family would then need to make 

calls to such places as the bank and utility companies to try 

to find out what bills were due. However, Stierstorfer also 

frequently lost her purse and checkbook, which also made it 

difficult for family members to help her write checks and pay 

bills. Family members also tried to help Stierstorfer consolidate her bank accounts in an effort to simplify her finances. 

Campbell’s husband testified that Stierstorfer was not amenable to such consolidation effort, and he did not think she 

really understood the concept.

The evidence also supports a finding that Stierstorfer had 

assets that would be wasted or dissipated unless proper management was provided. Stierstorfer had income from Social 
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IN RE GUARDIANSHIP & CONSERVATORSHIP OF STIERSTORFER

Cite as 27 Neb. App. 186

Security, a pension, and the annuity that was purchased as 

part of the asset preservation planning. The annuity itself pays 

out over $2,700 per month that is deposited into Stierstorfer’s 

checking account.

Based on the record before us, there was competent evidence to support a finding that Stierstorfer was unable to 

manage her assets and that she has property that will be 

wasted or dissipated without the appointment of a conservator. 

Therefore, the trial court did not err in appointing a conservator 

for Stierstorfer.

Guardianship.

On cross-appeal, Malloy argues that the court erred in failing to appoint a guardian for Stierstorfer and that a full guardianship was warranted.

[3] A court may appoint a guardian under Neb. Rev. Stat. 

§ 30-2620(a) (Reissue 2016) 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. In re Guardianship & Conservatorship 

of Mueller, 23 Neb. App. 430, 872 N.W.2d 906 (2015). An 

incapacitated person means any person who is impaired by 

reason of mental illness, mental deficiency, physical illness or 

disability, chronic use of drugs, chronic intoxication, or other 

cause (except minority) to the extent that the person lacks 

sufficient understanding or capacity to make or communicate 

responsible decisions concerning himself or herself. Neb. Rev. 

Stat. § 30-2601(1) (Reissue 2016).

Upon our review of the record, there is competent evidence 

to support the trial court’s finding that appointment of a guardian for Stierstorfer was not necessary. Although Stierstorfer 

had paranoid behavior before and after her husband’s death 

and was living in a filthy home, the court found that the problems caused by her home and her animals had been remedied. 
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Cite as 27 Neb. App. 186

At the time of trial, she was living in an apartment at a retirement community where she was happy and getting along well. 

Sahebjamii testified about Stierstorfer’s daily routine at the 

retirement home, describing how she was able to function 

without assistance throughout her day and meet her own basic 

needs. Sahebjamii also testified that Stierstorfer had seen her 

ophthalmologist for her glaucoma four times since Sahebjamii 

was appointed as temporary guardian and had been using 

her prescribed eye drops regularly. Arias also concluded that 

Stierstorfer did not appear to be mentally incapacitated and 

seemed capable of independent living, financial management, 

and medication management.

We conclude that there was not clear and convincing evidence that Stierstorfer was incapacitated, the first requirement 

before a court may appoint a guardian under § 30-2620(a). 

Accordingly, the trial court did not err in failing to appoint a 

guardian for Stierstorfer.

[4] Malloy also assigns that the trial court erred in failing 

to find that Stierstorfer required a full guardianship. Section 

30-2620(a) states that if the court finds that a guardianship 

should be created, it shall be a limited guardianship unless 

there is clear and convincing evidence that a full guardianship 

is necessary. Because we have concluded that the trial court 

did not err in failing to appoint a guardian for Stierstorfer, we 

need not address whether a full guardianship was necessary. 

See Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 

(2018) (appellate court is not obligated to engage in analysis 

not necessary to adjudicate case and controversy before it).

CONCLUSION

Based on the foregoing, we conclude that the trial court 

did not err in finding that a guardianship was not necessary for Stierstorfer, but that a conservatorship was necessary. 

Accordingly, the trial court’s order is affirmed.

Affirm