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Nebraska Supreme Court Advance Sheets

305 Nebraska Reports

IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

In re Guardianship of Suzette G., 

an incapacitated person.

Alvin G., Guardian, et al., appellees, 

v. Suzette G., appellant.

___ N.W.2d ___

Filed April 3, 2020. No. S-18-785.

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

reviews guardianship and conservatorship proceedings for error appearing on the record 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. Rules of the Supreme Court: Testimony: Guardians Ad Litem.

Neb. Ct. R. § 6-1469 (2017) does not prohibit testimony by a guardian 

ad litem and instead contemplates that a guardian ad litem can testify 

when such testimony is allowed by the Nebraska Rules of Professional 

Conduct.

Petition for further review from the Court of Appeals, 

Riedmann, Arterburn, and Welch, Judges, on appeal thereto 

from the County Court for Douglas County, Marcena M. 

Hendrix, Judge. Judgment of Court of Appeals affirmed.

James Walter Crampton for appellant.

Jayne Wagner and Emily J. Briski, of Legal Aid of Nebraska, 

for appellee Alvin G. 

Denise E. Frost, of Johnson & Mock, for guardian ad litem.

Nebraska Supreme Court Online Library

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

04/23/2020 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets

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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Suzette G. appealed the order of the county court for Douglas 

County which appointed her brother, Alvin G., as her limited 

guardian. The Nebraska Court of Appeals affirmed the county 

court’s order. We granted Suzette’s petition for further review 

in which she claims that the Court of Appeals erred when it 

determined that the county court did not err when it allowed 

the appointed guardian ad litem (GAL) to testify at the trial. 

We affirm the decision of the Court of Appeals which affirmed 

the order of the county court.

STATEMENT OF FACTS

Suzette’s brother, Alvin, filed petitions seeking temporary 

and permanent appointments as her limited guardian. Alvin 

alleged that because of mental health issues, Suzette was incapable of making responsible decisions regarding her person 

and her health, and he sought a limited guardianship related 

to those matters. A guardianship had been recommended by 

Suzette’s doctor and was part of a plan formulated by the 

mental health board. The court appointed Alvin as temporary 

guardian and began proceedings to consider his petition for a 

permanent guardianship. At a hearing in February 2018, the 

county court appointed a GAL and also appointed a separate 

attorney to act as Suzette’s legal counsel.

The trial on the permanent guardianship included appearances by counsel for Alvin and counsel for Suzette, and the 

GAL also appeared. Alvin called both Suzette and himself 

as witnesses when presenting his case as the petitioner, and 

the GAL was allowed to cross-examine both of them. Alvin 

also called the GAL as a witness. Suzette objected to the 

GAL’s testifying, and she argued that the GAL could not act 

as an attorney by cross-examining witnesses and then act as 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

a witness by testifying in the same proceeding. In response, 

the GAL argued that under the guardian ad litem statutes and 

rules, the GAL could do both. The court allowed the GAL’s 

testimony. During Alvin’s direct examination of the GAL, 

Alvin offered and the court received the GAL’s report into 

evidence without objection. Alvin questioned the GAL regarding information she reviewed in preparing her report and how 

she came to her recommendations. Suzette cross-examined 

the GAL.

In addition to cross-examining witnesses, the GAL was 

allowed to, and did, make objections throughout the trial. At 

the end of the trial, the GAL was allowed to make a closing 

statement. Following the trial, the court appointed Alvin as a 

permanent limited guardian for Suzette.

Suzette appealed to the Court of Appeals and claimed that 

the county court erred when it (1) found there was clear and 

convincing evidence that Alvin should be appointed as her 

guardian and (2) allowed the GAL to testify. The Court of 

Appeals rejected Suzette’s assignments of error and affirmed 

the county court’s order. See In re Guardianship of Suzette 

G., 27 Neb. App. 477, 934 N.W.2d 195 (2019). Suzette does 

not seek further review regarding whether there was clear 

and convincing evidence to support the appointment, and so 

the Court of Appeals’ resolution of that issue will not be discussed herein.

Regarding Suzette’s claim that the GAL should not have 

been allowed to testify, the Court of Appeals concluded that 

the court did not err when it allowed the testimony. The Court 

of Appeals noted first that Neb. Rev. Stat. § 30-4203(2)(a) 

(Reissue 2016) provides that an appointed guardian ad litem 

may, inter alia, “[c]onduct discovery, present witnesses, crossexamine witnesses, present other evidence, file motions, and 

appeal any decisions regarding the person for whom he or 

she has been appointed.” The Court of Appeals further noted 

Neb. Ct. R. § 6-1469(E)(4)(b) (2017), which provides that in 

court proceedings, “[t]he guardian ad litem may testify only 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

to the extent allowed by the Nebraska Rules of Professional 

Conduct.” The Court of Appeals cited Neb. Ct. R. of Prof. 

Cond. § 3-503.7(a) and stated that the rule “prohibits a lawyer 

from acting as an advocate at a trial in which the lawyer is 

likely to be a necessary witness.” In re Guardianship of Suzette 

G., 27 Neb. App. at 487, 934 N.W.2d at 202. But the Court of 

Appeals also noted Neb. Ct. R. § 6-1469(C)(2), which provides 

that “[w]here a lawyer has already been or is appointed to 

represent the legal interests of the person, . . . the guardian ad 

litem shall function only to advocate for the best interests of 

the person.”

The Court of Appeals reasoned that because the court had 

appointed both the GAL and a separate attorney to represent 

Suzette, “the GAL’s duty was to advocate for Suzette’s best 

interests” and “the GAL was not required to make a determination consistent with Suzette’s preferences.” In re Guardianship 

of Suzette G., 27 Neb. App. at 488, 934 N.W.2d at 202. 

The Court of Appeals noted Neb. Ct. R. § 6-1469(C)(3)(a), 

which provides that when the guardian ad litem is “serving as advocate for the person’s best interests, the guardian 

ad litem shall make an independent determination,” and that 

“[s]uch determination is not required to be consistent with any 

preferences expressed by the person.” The Court of Appeals 

reasoned that it was the responsibility of Suzette’s separately 

appointed attorney, and not the GAL, to advocate for Suzette’s 

preferences.

The Court of Appeals cited comment 1 to Neb. Ct. R. of 

Prof. Cond. § 3-503.7, which states in part that “[c]ombining 

the roles of advocate and witness can . . . involve a conflict of 

interest between the lawyer and client.” The Court of Appeals 

reasoned that because the GAL was advocating for Suzanne’s 

best interests rather than for Suzanne’s preferences, “no conflict of interest arose between the GAL and Suzette” as a 

result of the GAL’s acting as a witness. In re Guardianship of 

Suzette G., 27 Neb. App. at 488, 934 N.W.2d at 202. The Court 

of Appeals concluded that the GAL’s testimony “did not run 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

afoul of the Nebraska Rules of Professional Conduct” and that 

therefore the county court “did not err in permitting the GAL 

to testify.” In re Guardianship of Suzette G., 27 Neb. App. at 

488, 934 N.W.2d at 202.

We granted Suzette’s petition for further review.

ASSIGNMENT OF ERROR

Suzette claims that the Court of Appeals erred when it determined that Neb. Ct. R. § 6-1469 allowed the GAL to testify 

over her objection.

STANDARDS OF REVIEW

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

county court. In re Guardianship & Conservatorship of Alice 

H., 303 Neb. 235, 927 N.W.2d 787 (2019). 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

Suzette argues on further review that the relevant statutes 

and rules precluded the GAL’s testimony in this case and that 

the analysis of the Court of Appeals to the contrary was error. 

Suzette’s arguments necessarily implicate due process concerns and considerations of fairness to the parties to a guardianship proceeding. As explained below, we agree with the 

conclusion of the Court of Appeals that on the specific facts 

of this case, the statutes and rules did not prohibit the GAL’s 

testimony, and we further note that due process and fairness 

concerns that might be present under another set of facts were 

not implicated here. Accordingly, we do not comment on other 

circumstances, such as where separate counsel has not been 

appointed and the guardian ad litem represents the subject or 

where the subject’s rights, such as the right to cross-examine, 

have been denied.
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

[3] Section 30-4203 sets forth the duties and powers of a 

guardian ad litem; it does not specifically address whether a 

guardian ad litem may or should be a witness in a proceeding. As noted by the Court of Appeals, Neb. Ct. R. § 6-1469 

sets practice standards for guardians ad litem in proceedings 

under the Nebraska Probate Code and provides in subsection 

(E)(4)(b) that in court proceedings, “[t]he guardian ad litem 

may testify only to the extent allowed by the Nebraska Rules 

of Professional Conduct.” The rule therefore does not prohibit 

testimony by a guardian ad litem and instead contemplates 

that a guardian ad litem can testify when such testimony is 

allowed by the rules of professional conduct. We note that 

under Neb. Rev. Stat. § 30-4202(1)(a) (Reissue 2016), a 

guardian ad litem appointed pursuant to the Nebraska Probate 

Code must “[b]e an attorney in good standing admitted to the 

practice of law in the State of Nebraska,” and it follows that 

an appointed guardian ad litem is subject to the rules of professional conduct.

Suzette relies on Neb. Ct. R. of Prof. Cond. § 3-503.7(a) 

to argue that a guardian ad litem may not simultaneously act 

as an advocate in a proceeding and testify as a witness in that 

same proceeding. Neb. Ct. R. of Prof. Cond. § 3-503.7(a) 

provides that, subject to certain exceptions not relevant here, 

“[a] lawyer shall not act as advocate at a trial in which the 

lawyer is likely to be a . . . witness[.]” The comments to the 

rule elucidate the concerns behind the rule; Neb. Ct. R. of 

Prof. Cond. § 3-503.7, comment 1, states that “[c]ombining the 

roles of advocate and witness can prejudice the tribunal and 

the opposing party and can also involve a conflict of interest 

between the lawyer and client.” In Neb. Ct. R. of Prof. Cond. 

§ 3-503.7, comment 2, the concerns related to the tribunal and 

the opposing party are further explained: “The tribunal has 

proper objection when the trier of fact may be confused or 

misled by a lawyer serving as both advocate and witness. The 

opposing party has proper objection where the combination of 

roles may prejudice that party’s rights in the litigation.” Neb. 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

Ct. R. of Prof. Cond. § 3-503.7, comment 4, further notes that 

“[w]hether the tribunal is likely to be misled or the opposing 

party is likely to suffer prejudice depends on the nature of 

the case, the importance and probable tenor of the lawyer’s 

testimony, and the probability that the lawyer’s testimony will 

conflict with that of other witnesses.” Considering the nature 

and the specific circumstances of the present case, as we 

explain more fully below, we agree with the conclusion of the 

Court of Appeals that the GAL’s testimony in this case “did 

not run afoul of the Nebraska Rules of Professional Conduct.” 

In re Guardianship of Suzette G., 27 Neb. App. 477, 488, 934 

N.W.2d 195, 202 (2019).

In this case, the county court appointed separate counsel to 

represent Suzette as authorized by § 30-4202(3), which provides that the guardian ad litem may act as “counsel for the 

person who is the subject of the guardianship . . . unless . . . 

there are special reasons why . . . the person who is the subject 

of the proceeding should have separate counsel.” The appointment of separate counsel for Suzette by the county court indicates the court’s determination that the views of the GAL and 

those of Suzette had diverged. Given the existence of a conflict 

of interest between the GAL and Suzette, the court’s logical 

remedy for the perceived conflict was to appoint separate counsel for Suzette, and it did so.

The presence of two lawyers and their split roles were fully 

contemplated by Neb. Ct. R. § 6-1469(C)(2), which provides 

that “[w]here a lawyer has already been or is appointed to 

represent the legal interests of the person, . . . the guardian ad 

litem shall function only to advocate for the best interests of 

the person.” In such a situation, the separately appointed counsel represents the person who is the subject of the guardianship and his or her preferences whereas the guardian ad litem’s 

role is to advocate for what he or she determines to be the 

person’s best interests. Neb. Ct. R. § 6-1469(C)(3)(a) provides 

that when the guardian ad litem is “serving as advocate for the 

person’s best interests, the guardian ad litem shall make an 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

independent determination,” and that “[s]uch determination is 

not required to be consistent with any preferences expressed 

by the person.”

The concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) 

that a guardian ad litem’s testifying might create a conflict 

of interest between the person who is the subject of the proceeding and his or her counsel is not implicated under the 

present circumstances. A conflict of interest between the GAL 

and Suzette already existed because their views of Suzette’s 

best interests had diverged, and the court remedied that conflict by appointing separate counsel to represent Suzette. The 

GAL was therefore relieved of a duty to represent Suzette’s 

wishes, and instead, the GAL’s role was to advocate for what 

the GAL determined to be Suzette’s best interests. At that 

point, the GAL was not acting as Suzette’s counsel, and the 

concern of Neb. Ct. R. of Prof. Cond. § 3-503.7(a) that an 

attorney’s testimony would create a conflict between the attorney and the person he or she represents was not present here. 

See In re K Children, 120 Haw. 116, 121, 202 P.3d 577, 582 

(2007) (concluding that guardian ad litem’s testimony was 

not improper and reasoning that relevant statute distinguishes 

between “‘guardian ad litem’” and “‘counsel’”). We conclude 

that the GAL’s testifying in this case did not create a conflict 

of interest between counsel and client which did not already 

exist and that it therefore did not implicate Neb. Ct. R. of Prof. 

Cond. § 3-503.7(a) to the extent that such rule is concerned 

with creating conflicts between client and counsel.

The Court of Appeals ended its analysis of whether the 

GAL’s testimony was allowed under Neb. Ct. R. of Prof. 

Cond. § 3-503.7(a) when it concluded that the testimony 

did not create a conflict of interest between Suzette and her 

counsel. But we find it necessary to consider the other concerns addressed in Neb. Ct. R. of Prof. Cond. § 3-503.7(a), 

that is, both the potential to prejudice the tribunal and the 

potential to prejudice the opposing party. In the present case, 

those concerns require us to consider the effect of the GAL’s 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

testimony on the county court as fact finder and on Suzette, 

who could now be considered in the nature of an opposing 

party to the GAL.

As a preface to such analysis, we note that there have long 

been discussion and concern regarding the role of an attorney 

who serves as a guardian ad litem and in particular the application of professional rules of ethics in such a situation. See, 

Roger A. Eddleman & John A. DiNucci, Due Process and the 

Guardian Ad Litem in Elder Law Disputes: Which Hat Will She 

Don With Her Cloak of Neutrality? 13 Marq. Elder’s Advisor 

129 (2012); Marcia M. Boumil et al., Legal and Ethical Issues 

Confronting Guardian Ad Litem Practice, 13 J.L. & Fam. 

Stud. 43 (2011); Robert L. Aldridge, Ethics and the Attorney 

as Guardian Ad Litem, 49 Advocate (Idaho State Bar) 21 (June 

2006). See, also, In re K Children, 120 Haw. at 121, 202 P.3d 

at 582 (noting “nationwide” struggle to clarify roles of guardian ad litem and counsel). Such discussion informs our analysis 

in this case.

As to the first concern, regarding the potential to prejudice 

the tribunal, we note the portion of comment 2 to Neb. Ct. R. 

of Prof. Cond. § 3-503.7(a) which states that “[t]he tribunal 

has proper objection when the trier of fact may be confused 

or misled by a lawyer serving as both advocate and witness.” 

In a different case, the focus of this concern would be on the 

effect the lawyer’s testifying would have on a jury that was 

acting as the fact finder; in such a case, the potential for confusion is more apparent. In the present case, the county court 

was the fact finder, and therefore, we consider whether the 

court might have been confused by the GAL’s serving both 

as an advocate for best interests and as a witness. We conclude that under the circumstances of this case, there was no 

such prejudice.

We do not think the concerns that are present where a 

jury serves as fact finder are present in cases such as the 

instant matter where the court acts as fact finder. We believe 

a court can be expected to understand the different roles of 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

an advocate and of a witness, and a court can be expected 

to distinguish when a guardian ad litem is acting in one role 

rather than the other. Generally, a court may view the guardian 

ad litem as an independent party to investigate and report on 

the subject’s best interests. See Eddleman & DiNucci, supra. 

However, it has been observed that, at least in certain respects, 

a guardian ad litem “is viewed as an arm of the court.” Id. 

at 162. Whereas here, separate counsel has been appointed 

to represent the preferences of the subject of the proceeding, 

the court can be expected to understand the more limited role 

of the guardian ad litem as an advocate for the best interests of the subject. We conclude that the circumstances of 

the present case do not implicate the concern of Neb. Ct. R. 

of Prof. Cond. § 3-503.7(a) to the effect that the fact finder 

would be confused about the guardian ad litem’s role in the 

proceedings and that the tribunal might be prejudiced by the 

GAL’s testifying.

As to the second concern regarding the potential to prejudice the opposing party, we note the portion of comment 2 to 

Neb. Ct. R. of Prof. Cond. § 3-503.7(a) which states that “[t]he 

opposing party has proper objection where the combination 

of roles may prejudice that party’s rights in the litigation.” In 

the present case, because the GAL was representing what she 

determined to be Suzette’s best interests and the GAL’s views 

diverged from Suzanne’s wishes, Suzanne could be considered 

in the nature of an opposing party to the GAL. We therefore 

consider whether the GAL’s being allowed to testify prejudiced 

Suzanne’s rights in this proceeding. We conclude that under 

the circumstances of this case, it did not.

As noted above, there has long been discussion of ethical 

concerns related to the role of a guardian ad litem, and those 

concerns relate in large part to the due process and other rights 

of the subject of a proceeding as well as other parties to the 

proceeding. Other courts have had concerns regarding how 

the guardian ad litem’s role in a proceeding affects other parties’ rights. For example, in S.S. v. D.M., 597 A.2d 870, 878 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

(D.C. App. 1991), the District of Columbia Court of Appeals 

determined that error arose when a guardian ad litem was 

allowed to act as both the child’s attorney and as a witness 

in an adoption proceeding; although the appellate court ultimately concluded that there was no miscarriage of justice, 

it stated that “because the guardian ad litem, who had been 

appointed as an advocate for the child, was called as a witness for one of the opposing parties, new counsel should have 

been appointed to represent the child.” (Emphasis omitted.) 

In Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014), the Supreme 

Court of Kentucky concluded that a mother’s right to due 

process included the right to cross-examine the guardian ad 

litem when the trial court relied on the guardian ad litem’s 

report to make custody decisions.

Contrary to the situations in the cases just cited, we think 

that similar concerns regarding the effect that the GAL’s role 

in this proceeding had on Suzette’s rights were adequately 

addressed. The appointment of separate counsel to represent 

Suzette was designed to protect her rights in this proceeding. The appointment of separate counsel allowed the GAL to 

focus on advocating for what she found to be Suzette’s best 

interests without subordination to Suzette’s divergent wishes. 

Meanwhile, the separate counsel was able to focus on protecting Suzette’s rights by advancing her wishes without deference to the GAL’s determination of Suzette’s best interests. 

As part of protecting Suzette’s rights, separately appointed 

counsel was able to cross-examine the GAL, as well as other 

witnesses, and to take the necessary steps in order to advance 

Suzette’s arguments.

CONCLUSION

Under the circumstances of the present case—a guardianship proceeding in which separate counsel was appointed to 

represent the subject of the proceeding and the guardian ad 

litem’s role was limited to advocating for the subject’s best 

interests rather than representing the subject—the concerns of 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 305 Neb. 428

Neb. Ct. R. of Prof. Cond. § 3-503.7(a) were not implicated. 

The GAL was therefore allowed to testify under the rules of 

professional conduct and, consequently, under Neb. Ct. R. 

§ 6-1469(E)(4)(b), which provides that “[t]he guardian ad litem 

may testify only to the extent allowed by the Nebraska Rules 

of Professional Conduct.” We therefore conclude that the Court 

of Appeals did not err when it concluded that the county court 

did not err when it allowed the GAL to testify, and we affirm 

the decision of the Court of Appeals which affirmed the order 

of the county court which appointed Alvin as Suzette’s limited guardian.

Affirmed.