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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

In re Guardianship of Suzette G., 

an incapacitated person.

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

v. Suzette G., appellant.

___ N.W.2d ___

Filed August 6, 2019. No. A-18-785.

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. ____: ____. An appellate court, in reviewing a judgment of the trial 

court for errors appearing on the record, will not substitute its factual 

findings for those of the trial court where competent evidence supports 

those findings.

4. Records: Appeal and Error. It is incumbent upon the appellant to 

present a record supporting the errors assigned; absent such a record, 

an appellate court will affirm the lower court’s decision regarding 

those errors.

5. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not passed upon by the trial court.

Appeal from the County Court for Douglas County: Marcena

M. Hendrix, Judge. Affirmed.

James Walter Crampton for appellant.

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

for appellee Alvin G.

Nebraska Supreme Court Online Library

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

08/13/2019 12:05 AM CDT
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

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

Riedmann, Arterburn, and Welch, Judges.

Riedmann, Judge.

I. INTRODUCTION

Suzette G. appeals from an order of the county court for 

Douglas County appointing her brother, Alvin G., as her limited guardian. On appeal, Suzette argues that there was not sufficient evidence demonstrating she was in need of a guardian 

and that the guardian ad litem (GAL) appointed for her should 

not have been permitted to testify at trial. We find that the 

county court did not err, and therefore, we affirm.

II. BACKGROUND

In November 2017, Alvin filed two petitions with the 

county court seeking to be appointed temporary and permanent guardian for Suzette. In his petitions, Alvin stated that a 

guardianship was necessary because Suzette lacked sufficient 

understanding to make or communicate responsible decisions 

concerning her own person in several areas, including giving necessary consents, approvals, and releases; arranging 

for training, education, or other rehabilitative services; and 

applying for government or private benefits to which she may 

have been entitled. In his petition for permanent guardianship, 

he also asserted that Suzette was incapable of arranging for 

her treatment or medical care. As part of both petitions, Alvin 

stated that his and Suzette’s parents and their sister were necessary persons required by law to receive notice of the time 

and place of the hearing for guardianship. The court subsequently appointed Alvin as temporary guardian of Suzette, 

giving him the limited powers he requested in his petition and 

the power to arrange for her medical care.

At a hearing held in February 2018 on Alvin’s petition for 

permanent guardianship, the court appointed Suzette both a 

GAL and separate legal counsel. Alvin’s temporary guardianship of Suzette was extended until June 2018, when a final 
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27 Nebraska Appellate Reports

IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

hearing was held on his petition for permanent guardianship. 

At the hearing, Alvin adduced evidence demonstrating that 

Suzette was struggling with her mental health and was hospitalized twice in the preceding year for it. Suzette had been 

diagnosed at different times in her adult life with paranoid 

schizoaffective disorder and paranoid schizophrenia.

The evidence revealed that in October 2017, the mental health board for Douglas County found Suzette to be 

mentally ill and dangerous, and that she was hospitalized 

until December 2017 and then placed in outpatient care until 

January 2018. Alvin and his sister had petitioned the mental 

health board to hospitalize Suzette because she was contacting 

law enforcement and federal marshals claiming that people 

were following her. She also believed that someone was living 

inside her house, that she was being “medically murdered,” 

and that she asked her neighbors to test her hair and fingernails for poison.

The evidence also showed that after Suzette was released 

from the hospital in December 2017, a treatment plan was 

created by the mental health board which required that she 

receive an injectable medication every month for her mental 

health and that she seek a guardianship. However, in February 

2018, Suzette was hospitalized a second time, after she failed 

to take her medication. Suzette argued that although she did 

not take the injectable medication because it made her ill, 

she was taking the tablet form of the medication. Suzette was 

released from the hospital in March 2018, and it was recommended that she see a psychiatrist and a therapist.

Suzette has had a history of noncompliance with treatment 

for her mental illness. Despite being recommended to do so, 

Suzette did not meet consistently with a therapist. She had 

three therapists between January and June 2018. She stopped 

seeing her first therapist because she did not choose her. She 

discontinued treatment with the second therapist, Dr. Aveva 

Shukert, because she was “negative,” and she stopped working 

with the third therapist after two visits because Suzette believed 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

she was lying. At the time of the hearing, Suzette was not in 

therapy. Additionally, Suzette had stopped taking medication 

for her mental health in the past because it was “fruitless,” and 

she had stopped working with her psychiatrist in 2015 because 

she did not find it to be effective.

Suzette’s GAL testified, over an objection by Suzette, that 

Suzette had been the subject of seven mental health board 

holds in her adult life. Suzette provided the GAL with a 

release for her to obtain information from only Shukert, who 

indicated that Suzette was having delusional thoughts while 

she was her patient. The GAL also testified that Suzette was 

under a mental health board commitment at the time of the 

hearing, meaning she could be hospitalized again if she failed 

to address her mental health.

The GAL stated that she was concerned Suzette did not recognize the severity of her mental illness and therefore stopped 

receiving treatment for it. It was the GAL’s recommendation 

that Suzette be appointed a limited guardian for the purpose 

of ensuring that she receive her medications and professional 

help for her mental illness. The GAL testified that a limited 

guardianship was preferred because Suzette was able to handle 

her finances and budget, but she required assistance regarding her mental health needs. Finally, the GAL opined that a 

limited guardianship would be the least restrictive alternative 

for Suzette.

Alvin testified that he sought a temporary guardianship for 

Suzette because her doctors recommended it and it was part 

of the treatment plan formulated by the mental health board. 

Alvin stated that while he was Suzette’s temporary guardian, he worked to obtain full Medicaid assistance for her, 

worked with her local pharmacy to ensure she was receiving 

her medications, sat in on a therapy session for her, contacted 

Shukert to receive information on Suzette’s appointments and 

treatment, and assisted in ensuring that her house was livable. Alvin further testified that while he believed Suzette was 

capable of handling her finances, she had displayed a long 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

history of not complying with medication and treatment for 

her mental health, which led to a deteriorated quality of life. 

On cross-examination, Alvin stated that Suzette was not forthcoming with information regarding her health and that he was 

able to obtain information regarding her mental health only by 

speaking directly to her medical professionals, which he was 

authorized to do as her temporary guardian.

Suzette also testified at the hearing. She stated that Alvin 

was not speaking with her while he was her temporary guardian because she had confronted him in the past, alleging that 

he fondled her when she was a child. She further stated that 

she was not consulted regarding the first mental health board 

hold that was placed on her in October 2017 and that she was 

not happy with the proceedings. Additionally, she testified that 

she paid the mortgage on her home, drove herself to appointments, and bought her own groceries.

Following the hearing, the county court appointed Alvin as 

Suzette’s limited guardian. The court stated that a guardian was 

necessary for Suzette because she lacked sufficient understanding and capacity to make or communicate responsible decisions concerning her person and her health. The court’s order 

indicated that Alvin was responsible for arranging medical care 

for Suzette; giving necessary consent, approval, or releases 

on her behalf; and arranging for training, education, or other 

habilitating services for her. Suzette timely appealed.

III. ASSIGNMENTS OF ERROR

Suzette assigns, restated, that the county court erred in (1) 

finding there was clear and convincing evidence that Alvin 

should be appointed limited guardian for her and (2) allowing 

the GAL to testify.

IV. STANDARD OF REVIEW

[1-3] An appellate court reviews guardianship and conservatorship proceedings for error appearing on the record made 

in the county court. In re Guardianship & Conservatorship 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

of Forster, 22 Neb. App. 478, 856 N.W.2d 134 (2014). 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. An appellate court, 

in reviewing a judgment of the trial court for errors appearing 

on the record, will not substitute its factual findings for those 

of the trial court where competent evidence supports those 

findings. Id.

V. ANALYSIS

1. Appointment of Limited Guardian

Suzette argues that the county court erred in finding that 

Alvin proved by clear and convincing evidence that he should 

be appointed her limited guardian. Suzette asserts that the 

evidence does not demonstrate that she needs a guardian, that 

notice was not given to all parties required by statute, and 

that Alvin did not have priority to be appointed as her limited 

guardian. We disagree.

(a) County Court Did Not Err in Determining 

Suzette Required Limited Guardian

A court may appoint a guardian if it is satisfied by clear 

and convincing evidence that the person for whom a guardian 

is sought is incapacitated and that 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. Neb. Rev. Stat. § 30-2620 (Reissue 

2016). An incapacitated person includes any person who is 

impaired by reason of mental illness or mental deficiency 

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).

Here, the county court’s determination that Suzette was 

incapacitated because she lacked sufficient understanding and 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

capacity to make or communicate responsible decisions concerning her person and her mental health, and thus required a 

guardian, was supported by clear and convincing evidence.

First, the record demonstrates that Suzette has struggled 

with mental illness for many years. Despite her history, the 

record reveals that Suzette has not adequately addressed her 

mental health. In October 2017, she was hospitalized due to 

delusional thoughts which led her to contact local law enforcement and federal marshals claiming that people were after her 

and that she was being “medically murdered.” She also took 

samples of her hair and fingernails to neighbors to be tested for 

poison. Upon her release from the hospital, Suzette failed to 

take her required monthly injectable medication and was again 

hospitalized in February 2018. Additionally, Suzette testified 

that in the past, she had stopped taking medications for her 

mental health because they were “fruitless.”

Furthermore, Suzette admits that she did not consistently 

meet with therapists as required. She had three therapists 

between January and June 2018 and was not seeing a therapist 

at the time of the hearing. She had various reasons for discontinuing her therapy. Even while treating with one of the therapists, Suzette continued to suffer from delusional thoughts.

Suzette’s inability or refusal to receive treatment for her 

mental illness supports the court’s determination that she 

lacked sufficient understanding or capacity to make responsible decisions concerning her mental health. Alvin testified 

that while he was her temporary guardian, Suzette did not 

inform him when she stopped seeing her therapists; nor did she 

inform him when she began seeing a new primary care physician. Thus, the record supports the court’s finding that Suzette 

was not able to communicate responsible decisions regarding 

her mental health.

Although Suzette argues on appeal that a guardianship was 

unnecessary because Alvin did not employ his powers as 

her temporary guardian, Alvin testified that he attempted to 

obtain full Medicaid assistance for her, worked with her local 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

pharmacy to ensure she was receiving her medications, set up 

initial appointments for her with medical professionals, and 

contacted her health care providers to receive updates on her 

treatment. Therefore, the court’s decision that Suzette was 

incapacitated, and in need of a guardian, was supported by 

clear and convincing evidence.

Further, the county court was correct in appointing Alvin 

as a limited guardian. If the court finds that a guardianship 

should be created, the guardianship shall be a limited guardianship unless the court finds by clear and convincing evidence 

that a full guardianship is necessary. § 30-2620. If a limited 

guardianship is created, the court shall specify the authorities 

and responsibilities which the guardian shall have including 

arranging for medical care for the ward; giving necessary consent, approval, or releases on behalf of the ward; and applying 

for private or governmental benefits to which the ward may be 

entitled. See id.

The record indicates that Suzette was able to adequately 

manage her finances and life outside of her mental health. 

She paid her mortgage, drove herself to appointments, and 

bought her own groceries. Both the GAL and Alvin testified 

that Suzette could manage her financial affairs but needed 

a guardian to ensure she was addressing her mental health. 

Therefore, the court properly limited Alvin’s role as guardian 

to those tasks necessary to manage Suzette’s mental health 

treatment.

(b) Record Does Not Indicate Alvin Failed to 

Provide Notice to All Required Persons

Suzette asserts that Alvin failed to provide notice of his petition for guardianship to all persons required by statute, namely, 

her parents. We disagree.

Neb. Rev. Stat. § 30-2625 (Reissue 2016) requires a person 

seeking to be appointed as a guardian for a person alleged to be 

incapacitated to provide notice of hearing to the person alleged 

to be incapacitated and his or her spouse, parents, and adult 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

children. Suzette asserts that her parents were given notice of 

the February 2018 hearing but that Alvin did not provide her 

parents notice “as required by . . . § 30-2625.” Brief for appellant at 6. She does not identify the manner in which notice 

was deficient.

[4] Our record contains a notice of hearing for the February 

2018 hearing, and it reflects notice to Suzette’s parents more 

than 14 days prior to the hearing as required. Our record does 

not contain the notice of hearing for the June hearing, but some 

notice must have been provided, because Suzette, her father 

and sister, Alvin, the GAL, and all counsel appeared for trial 

on June 29. It is incumbent upon the appellant to present a 

record supporting the errors assigned; absent such a record, an 

appellate court will affirm the lower court’s decision regarding 

those errors. Pierce v. Landmark Mgmt. Group, 293 Neb. 890, 

880 N.W.2d 885 (2016).

[5] Nonetheless, the transcript indicates that the journal 

entry documenting that trial occurred on June 29, 2018, 

was sent to Suzette’s parents, as was the subsequent order 

appointing Alvin as guardian. The record further reflects that 

Suzette’s father attended the hearing. Our record does not 

contain any objection by Suzette or her parents regarding 

the alleged lack of notice, either at the hearing or following 

the appointment of Alvin as guardian. It appears the issue 

was not raised in the trial court. An appellate court will not 

consider an issue on appeal that was not passed upon by the 

trial court. In re Guardianship & Conservatorship of Larson, 

270 Neb. 837, 708 N.W.2d 262 (2006). Because the issue 

was not raised in the trial court, we decline to further address 

this argument.

(c) Court Appropriately Appointed Alvin 

as Limited Guardian for Suzette

Suzette also alleges that the county court erred in appointing Alvin as her limited guardian, because Alvin did not have 

priority to be appointed as a guardian. We disagree.
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

Any competent person may be appointed as a guardian of a 

person alleged to be incapacitated. Neb. Rev. Stat. § 30-2627(a) 

(Reissue 2016). Section 30-2627(b) sets forth the following 

order of priority for persons who are not disqualified and who 

“exhibit the ability to exercise the powers to be assigned by 

the court”:

(1) A person nominated most recently by one of the 

following methods:

(i) A person nominated by the incapacitated person in 

a power of attorney or a durable power of attorney;

(ii) A person acting under a power of attorney or durable power of attorney; or

(iii) A person nominated by an attorney in fact who 

is given power to nominate in a power of attorney or 

a durable power of attorney executed by the incapacitated person;

(2) The spouse of the incapacitated person;

(3) An adult child of the incapacitated person;

(4) A parent of the incapacitated person, including a 

person nominated by will or other writing signed by a 

deceased parent;

(5) Any relative of the incapacitated person with whom 

he or she has resided for more than six months prior to 

the filing of the petition;

(6) A person nominated by the person who is caring for 

him or her or paying benefits to him or her;

(7) The Public Guardian.

However, the court, acting in the best interests of the 

incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority. 

§ 30-2627(c).

On appeal, Suzette argues that Alvin had lower priority 

than her parents to be appointed as limited guardian and thus 

should not have been appointed. However, there is no evidence 

in the record that any person besides Alvin, including Suzette’s 

parents, applied to be her guardian. A person interested in 
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

becoming a guardian of a person alleged to be incapacitated 

must file a petition to be a guardian. Neb. Rev. Stat. § 30-2619 

(Reissue 2016). Thus, Alvin was the only individual who properly petitioned to become Suzette’s limited guardian.

Section 30-2627(a) states that any competent person may 

be appointed guardian of a person alleged to be incapacitated. 

There is nothing in the record indicating that Alvin is not competent to be Suzette’s limited guardian. Although Suzette testified that Alvin was not speaking to her because she confronted 

him about his alleged inappropriate touching of her when she 

was a child, she presented no corroborating evidence of such 

an act and the county court clearly did not find the allegation 

credible. We therefore find no error in the court’s appointment 

of Alvin as Suzette’s limited guardian.

2. Court Did Not Err in Permitting

GAL to Testify at Trial

The GAL cross-examined witnesses and was allowed to testify over Suzette’s objection. Suzette argues that the court erred 

in permitting the GAL to testify, because she was improperly 

acting as both an advocate and a witness. We find no error in 

the county court’s decision.

A GAL may conduct 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. Neb. Rev. Stat. § 30-4203(2)(a) (Reissue 

2016). Pursuant to the GAL practice standards for proceedings 

under the Nebraska Probate Code, a GAL may testify to the 

extent allowed by the Nebraska Rules of Professional Conduct. 

See Neb. Ct. R. § 6-1469 (2017). Neb. Ct. R. of Prof. Cond. 

§ 3-503.7(a) prohibits a lawyer from acting as an advocate at 

a trial in which the lawyer is likely to be a necessary witness. 

Where a lawyer has already been appointed to represent the 

legal interests of a person alleged to be in need of a guardian, 

the GAL functions only to advocate for the best interests of 

that person. § 6-1469(C)(2).
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IN RE GUARDIANSHIP OF SUZETTE G.

Cite as 27 Neb. App. 477

Suzette was appointed an attorney and a GAL; therefore, 

the GAL’s duty was to advocate for Suzette’s best interests. In 

doing so, the GAL was not required to make a determination 

consistent with Suzette’s preferences. See § 6-1469(C)(3)(a). 

That was the responsibility of Suzette’s attorney. We note that 

the reason the Nebraska Rules of Professional Conduct prohibit 

an attorney from acting as a witness is to avoid a conflict of 

interest with his or her client. See § 3-503.7, comment 1. But 

here, where the GAL is representing the person’s best interests, 

such potential conflict does not exist.

The GAL was called to testify as to the content of her report; 

to the extent her testimony was contained within the report, 

any testimony was merely cumulative. To the extent the GAL’s 

testimony extended beyond the content of her report, we find 

no error, because it did not run afoul of the Nebraska Rules 

of Professional Conduct. As the GAL was an advocate for 

Suzette’s best interests, no conflict of interest arose between 

the GAL and Suzette.

VI. CONCLUSION

The county court did not err in determining that Suzette was 

in need of a limited guardian and appointing Alvin to serve in 

that capacity. The court also did not err in permitting the GAL 

to testify at the hearing. Accordingly, we affirm the order of 

the county court.

Affirmed.