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Nebraska Supreme Court Advance Sheets

309 Nebraska Reports

IN RE GUARDIANSHIP OF NICHOLAS H.

Cite as 309 Neb. 1

In re Guardianship of Nicholas H., 

an incapacitated person. 

Ronda R. and John H., appellants, v. 

Office of Public Guardian, appellee.

___ N.W.2d ___

Filed April 23, 2021. No. S-20-044.

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. Judgments: Jurisdiction: Standing: Parties. A jurisdictional issue that 

does not involve a factual dispute presents a question of law, and only a 

party who has standing may invoke the jurisdiction of a court.

4. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

5. Standing: Jurisdiction: Parties: Appeal and Error. Standing is a 

jurisdictional component of a party’s case, and an appellate court must 

address it as a threshold matter.

6. Guardians and Conservators. One who is not willing to serve as a 

private guardian cannot be compelled to accept such an appointment.

7. ____. Under the Public Guardianship Act, appointment of the Public 

Guardian is intended to be an option of last resort to ensure that guardians are available for wards who have no family member or other person 

who is qualified, available, and willing to serve as guardian.

8. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

Nebraska Supreme Court Online Library

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

05/14/2021 12:11 AM CDT
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IN RE GUARDIANSHIP OF NICHOLAS H.

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as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

9. Statutes. A court must give effect to all parts of a statute, and if it can 

be avoided, no word, clause, or sentence will be rejected as superfluous 

or meaningless.

10. Statutes: Legislature: Intent. Components of a series or collection of 

statutes pertaining to a certain subject matter are in pari materia and 

should be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

11. Guardians and Conservators: Words and Phrases. To be a “successor 

guardian” as that term is defined in the Public Guardianship Act, a person or entity must be willing to become a guardian for a ward previously 

served by the Office of Public Guardian.

12. Guardians and Conservators: Legislature: Proof. Once the Public 

Guardian has been appointed by the court, the Legislature has authorized just two circumstances under which the Public Guardian may 

be discharged under Neb. Rev. Stat. § 30-4117 (Reissue 2016) on 

the ground its services are no longer necessary: (1) when the Public 

Guardian has shown that the ward is no longer incapacitated and in need 

of a guardian or (2) when the Public Guardian has located a successor 

guardian who is qualified, available, and willing to become a guardian 

for the ward.

Appeal from the County Court for Scotts Bluff County: 

Kris D. Mickey, Judge. Reversed and remanded for further 

proceedings.

Joe W. Stecher, of Skavdahl, Edmund & Stecher, for 

appellants.

Douglas J. Peterson, Attorney General, and James A. 

Campbell, Solicitor General, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Stacy, J.

This is an appeal from an order of the county court purporting to discharge the Office of Public Guardian (OPG) 

and appoint the ward’s parents as successor coguardians over 
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IN RE GUARDIANSHIP OF NICHOLAS H.

Cite as 309 Neb. 1

their objection. The primary issues on appeal are whether the 

parents have standing to appeal from the county court’s order 

and, if so, whether the county court’s order discharging the 

OPG conformed to the law.

For the reasons explained below, we find the parents 

have standing to appeal, and we further find that the Public 

Guardianship Act 1 does not permit discharge of the OPG under 

the circumstances present here. We therefore reverse the order 

of discharge and remand the cause for further proceedings.

BACKGROUND

Nicholas H. is an adult with severe mental illness who is 

incapacitated and in need of a guardian. Nicholas’ parents, 

Ronda R. and John H., served as his temporary court-appointed 

coguardians until 2016, when they petitioned to have the OPG 

appointed as Nicholas’ guardian pursuant to the Public Guardianship Act. 2 The Public Guardianship Act became operative 

on January 1, 2015, and established the OPG to provide guardianship and conservatorship services for individuals when there 

was no “willing and qualified family member or other person 

available or willing to serve as guardian or conservator.” 3

Relevant provisions of the Public Guardianship Act will be 

discussed later in our analysis.

In 2016, the county court for Scotts Bluff County, Nebraska, 

appointed the OPG as Nicholas’ guardian. The OPG accepted 

the appointment, and letters of appointment were issued shortly 

thereafter. The OPG designated Stacy Rotherham, an associate 

public guardian, to act for Nicholas on behalf of the OPG.

It is undisputed that after Rotherham began acting as 

Nicholas’ public guardian, she and other OPG staff were subjected to extreme harassment by Nicholas, which included 

threats of violence. Rotherham ultimately obtained what the 

1 Neb. Rev. Stat. §§ 30-4101 to 30-4118 (Reissue 2016).

2 Id.

3 § 30-4102(1).
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IN RE GUARDIANSHIP OF NICHOLAS H.

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parties describe as a protection order against Nicholas, and he 

spent time in jail after being found in contempt of court for 

violating the order. After his release from jail, Nicholas continued the threatening behavior against Rotherham, and eventually, he was charged with felony terroristic threats.

In October 2019, while the terroristic threats charge against 

Nicholas was pending, the OPG filed a motion for discharge 

under § 30-4117. The motion alleged that Nicholas had a long 

history of threatening Rotherham and other OPG staff and that 

felony charges were pending against Nicholas relating to his 

conduct toward Rotherham. The motion acknowledged that 

Nicholas was still in need of a guardian, but alleged “the services of [the OPG] are no longer necessary because [Nicholas’] 

parents . . . are the more appropriate option and should be 

named successor guardians.”

Nicholas’ parents filed a verified objection to the OPG’s 

motion. They generally opposed the OPG’s request to have 

them appointed successor guardians, stating they were “illprepared” to serve in that capacity again. They cited their 

advanced age, their poor health, and the fact that they resided 

several hours away in South Dakota as reasons they did not 

want to be successor guardians.

An evidentiary hearing on the OPG’s motion and the parents’ 

objection was held December 17, 2019. The OPG and Nicholas 

appeared with counsel, and Nicholas’ parents appeared pro se. 

Nicholas’ court-appointed guardian ad litem (GAL) did not 

appear, and our record contains no GAL report regarding any 

issue presented in the OPG’s motion.

Rotherham testified about the persistent harassment and personal threats she experienced while serving as Nicholas’ public 

guardian, including “delusional” and threatening text messages and phone calls from Nicholas. She described Nicholas 

as “obsessed with [her] personally” and said his behavior had 

escalated to the point where she had to request a protection 

order and install security cameras at her home out of concern 

for her children’s safety. Rotherham testified that a licensed 
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IN RE GUARDIANSHIP OF NICHOLAS H.

Cite as 309 Neb. 1

mental health professional had recommended residential treatment for Nicholas, but Rotherham had not been able to arrange 

such treatment because no facility would accept him.

Rotherham testified that, as an associate public guardian, 

she was required to meet with Nicholas monthly. 4 She said 

the meetings had “become difficult for safety reasons,” and 

once the terroristic threats charge was filed, she had no contact 

with Nicholas at all. Because she was not able to comply with 

her statutory obligations as Nicholas’ guardian, she believed 

it would be in Nicholas’ best interests for the OPG to be discharged. According to Rotherham, she is the only associate 

public guardian covering the western part of Nebraska, and 

due to wait lists and statutory caseload limitations, 5 there were 

no other OPG team members who could be designated to serve 

Nicholas on behalf of the OPG. She believed that Nicholas’ 

parents were “fit and appropriate” to serve as successor guardians because they had remained very active in Nicholas’ care, 

even after the OPG was appointed. But Rotherham admitted on 

cross-examination that she had not “looked at” anyone other 

than Nicholas’ parents to serve as successor guardians.

The OPG also offered testimony from the licensed psychologist appointed by the district court for Scotts Bluff County to 

evaluate Nicholas for competency in his pending felony case. 

The psychologist testified that Nicholas meets the “criteria for 

a severe persistent mental illness” and struggles with “a delusional process,” but the psychologist did not offer a specific 

diagnosis. During the evaluation process, Nicholas expressed 

disappointment in Rotherham’s performance as his guardian, 

and the psychologist thought that if Rotherham continued 

to be the associate public guardian assigned to Nicholas, he 

would be “at risk for further legal entanglements, and certainly 

4 See § 30-4116(2)(d) (monitoring of ward by Public Guardian “shall, at a 

minimum, consist of monthly personal contact with the ward”).

5 See § 30-4115(2) and (3) (prohibiting OPG from accepting further 

appointments if ratio of wards served to team member exceeds 20).
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IN RE GUARDIANSHIP OF NICHOLAS H.

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by extension that would . . . affect his well-being and his 

standing in his community.” The psychologist declined to offer 

an opinion on whether the OPG should be discharged, but he 

did say it would be best for both Nicholas and Rotherham 

to discontinue their association with one another. On crossexamination, the psychologist admitted that unless Nicholas 

received “comprehensive wraparound psychiatric services,” it 

was possible that no matter who his guardian was, his threatening behavior would continue.

Nicholas’ parents did not testify at the hearing, but their 

written statement was received as an exhibit and they were 

allowed to argue their objection. The parents expressed concern that Nicholas’ mental health had been deteriorating for 

some time, and they worried his behavior and resulting legal 

problems would likely continue to degrade until he was provided professional mental health treatment. The parents firmly 

believed that Nicholas still needed a guardianship and that he 

also needed a GAL who would advocate for his interests. The 

parents encouraged the court to keep the OPG as Nicholas’ 

guardian, but to designate someone other than Rotherham to 

work with Nicholas. The parents did not believe they were 

“capable” of serving as successor guardians, again citing their 

advanced age, poor health, out-of-state residence, and unfamiliarity with how to manage their son’s serious mental illness. 

They also explained that Nicholas’ prior assaultive and threatening behavior toward them while they were his temporary 

guardians was “why [they] asked the public guardian to take 

over in the first place.” The parents admitted that Nicholas’ 

delusional thinking made him a “challenging case,” but they 

argued the OPG had access to more resources and better training than they did. 6

6 See, e.g., § 30-4104(2) (providing that OPG’s multidisciplinary team may 

include professionals “with experience working with individuals with 

dementia, developmental disabilities, chronic and acute medical needs, 

mental health issues, substance abuse, or other conditions”).
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IN RE GUARDIANSHIP OF NICHOLAS H.

Cite as 309 Neb. 1

Nicholas’ attorney also urged the court to leave the guardianship in place and to continue the OPG’s appointment. The 

attorney agreed that Rotherham should no longer be the OPG 

team member to work with Nicholas, but he suggested that if 

the OPG had no other associate public guardians available to 

cover the western portion of the state, it was “up to them” to 

reallocate resources. 7

From the bench, the court acknowledged that the situation was difficult for everyone and that there was “no great 

option” available. Citing the deteriorating relationship between 

Rotherham and Nicholas, the court concluded it was “in both 

parties’ best interests” that Rotherham not serve as Nicholas’ 

designated public guardian. Then, finding there was no one 

else in the OPG “who would be available to assist in this case,” 

and noting it was likely that anyone else assigned to work 

with Nicholas would experience the same difficulties as had 

Rotherham, the court granted the OPG’s motion for discharge. 

Finally, the court appointed Nicholas’ parents as successor 

coguardians “until such time as a more appropriate option is 

found by such natural parents for their son.”

The same day, the court entered an order in accordance 

with its ruling from the bench, granting the OPG’s motion for 

discharge and terminating the OPG’s authority and responsibility as Nicholas’ guardian. The order recited there was 

clear and convincing evidence that a full guardianship for 

Nicholas was both necessary and the least restrictive alternative, and it directed that Nicholas’ parents “shall be appointed 

as Successor Co-guardians of Nicholas . . . upon Letters of 

Guardianship being issued” and upon the parents’ filing certain required documents with the court, including an acceptance of appointment and an inventory. The order directed 

the parents to complete guardianship training within 90 days, 

7 See, generally, § 30-4115 (requiring OPG to “maintain the appropriate 

personnel and workload scope necessary to fulfill all its responsibilities 

and duties under the Public Guardianship Act”).
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IN RE GUARDIANSHIP OF NICHOLAS H.

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and it stated that letters of guardianship would not be issued 

until the filing requirements had been completed.

According to our record, the parents never filed an acceptance of appointment or any of the other documents referenced 

in the court’s order. The parents filed this timely appeal from 

the county court’s order, which we moved to our docket on our 

own motion.

ASSIGNMENTS OF ERROR

The parents assign that the county court erred in (1) ordering 

them to serve as Nicholas’ guardians over their objection and 

(2) discharging the OPG as Nicholas’ guardian.

STANDARD OF REVIEW

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

county court. 8 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. 9

[3] A jurisdictional issue that does not involve a factual 

dispute presents a question of law, and only a party who has 

standing may invoke the jurisdiction of a court. 10

[4] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 11

ANALYSIS

[5] The OPG contends the parents lack standing to raise 

either of their assignments of error. Because standing is a 

8 In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

9 Id.

10 Id.

11 Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d 744 (2021).
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jurisdictional component of a party’s case, 12 we must address it 

as a threshold matter. 13

Standing

Generally stated, the OPG argues the parents lack standing to challenge the county court’s order discharging the OPG 

and naming them successor guardians because they were not 

directly affected by the order. We disagree.

The parents appeared as interested persons before the 

county court, and in that capacity, they filed a written objection to the OPG’s motion seeking discharge. The parents 

also objected to the OPG’s request to have them appointed 

as successor coguardians. The OPG does not challenge the 

parents’ status as interested persons, 14 nor does the OPG 

claim the parents had no right to object to the OPG’s motion. 

We therefore limit our standing analysis to the parents’ right 

to appeal from the county court’s order granting the OPG’s 

request for discharge and appointing the parents as successor 

coguardians.

Guardianship is considered a probate proceeding, and 

appeals from probate matters are governed by Neb. Rev. Stat. 

§ 30-1601 (Cum. Supp. 2020). Under that statute, “An appeal 

may be taken by any party and may also be taken by any 

12 In re Conservatorship of Franke, supra note 8.

13 See Edwards v. Douglas County, supra note 11.

14 See, e.g., Neb. Rev. Stat. § 30-2601(10) (Reissue 2016) (defining “interested person” to mean “children, spouses, [and] those persons who would 

be the heirs if the ward or person alleged to be incapacitated died without 

leaving a valid will who are adults”); Neb. Rev. Stat. § 30-2623 (Reissue 

2016) (allowing “ward or any person interested in his [or her] welfare” to 

petition for removal of guardian and appointment of successor guardian); 

Neb. Rev. Stat. § 30-2625 (Reissue 2016) (requiring that in proceeding for 

appointment or removal of guardian, notice should be given to, inter alia, 

parents of ward); Neb. Rev. Stat. § 30-2629 (Reissue 2016) (“[a]ny action 

or proposed action by a guardian may be challenged at any time by any 

interested person”).
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person against whom the final judgment or final order may be 

made or who may be affected thereby.” 15

We addressed the broad application of this appeal statute in 

In re Conservatorship of Franke. 16 In that case, an adult daughter sought to have a conservator appointed for her mother. 

The mother objected, as did her adult son. After a hearing, the 

court appointed a bank to serve as the conservator, and the 

son appealed. We found the son had standing to appeal under 

§ 30-1601(2) (Reissue 2016) for purposes of challenging his 

mother’s conservatorship, reasoning:

[T]his court has previously decided appeals from family 

members who objected to a conservatorship appointment. 

So, under our implicit interpretation of § 30-1601(2), a 

protected person’s close family members have the right to 

appeal from a final order in a conservatorship proceeding 

if they filed an objection and the county court appointed a 

conservator. Although [the son] is not a party, the right to 

appeal under § 30-1601(2) is not limited to parties. [The 

son] filed an objection and requested an evidentiary hearing. So, under the probate code’s generous appeal statute, 

he is a person against whom a final order was entered and 

has the right to appeal. 17

Here, the parents appeared before the county court as persons interested in Nicholas’ welfare, 18 and they objected to the 

OPG’s motion and offered evidence at the hearing. The county 

court’s order granting the OPG’s motion for discharge was a 

final order as to the parents’ objection, and because the same 

order named the parents as successor coguardians, it directly 

affected their substantial rights. We therefore find the parents 

have standing to appeal from the county court’s order, and 

15 § 30-1601(2).

16 In re Conservatorship of Franke, supra note 8.

17 Id. at 923, 875 N.W.2d at 417.

18 See §§ 30-2601(10), 30-2623, 30-2625, and 30-2629.
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we proceed to address the merits of their assignments of error 

on appeal.

Parents’ Appointment Not Completed

In their first assignment of error, the parents contend the 

county court erred by appointing them successor guardians 

over their objection. They point out “[t]here is no statutory 

authority or case law authority that authorizes a court to 

appoint a person guardian of another if that person objects to 

being appointed as guardian.” 19

[6] The parents are correct that one who is not willing to 

serve as a private guardian cannot be compelled to accept such 

an appointment. But to the extent they challenge the order 

of appointment as reversible error, they ignore that it was 

merely the first step in the appointment process. Only after 

a written acceptance is filed and the guardian submits to the 

personal jurisdiction of the court 20 will letters of guardianship 

be issued by the court. 21 Therefore, in the rare instance that 

someone is appointed who does not wish to serve as a courtappointed guardian, that person may simply refuse to accept 

the appointment.

That is what happened here. The court’s order appointing 

the parents as successor coguardians was necessarily contingent upon their acceptance, and our record shows they have 

declined to accept the appointment. During oral argument 

before this court, counsel confirmed that the parents’ position in that regard has not changed. Because the parents have 

not accepted the court’s appointment as Nicholas’ successor 

coguardians, no letters have issued. Consequently, the appointment they assign as error was never completed and cannot 

19 Brief for appellants at 4.

20 See Neb. Rev. Stat. § 30-2621 (Reissue 2016).

21 See, Neb. Rev. Stat. § 30-2620 (Reissue 2016); § 30-2621; Neb. Ct. R. 

§ 6-1443(A) (rev. 2020) (“[p]rior to being issued Letters, the guardian or 

conservator shall file an acceptance”).
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be completed without their voluntary acceptance. We find no 

merit to their first assignment of error.

Discharge of OPG Improper

In their second assignment of error, the parents argue the 

county court erred by discharging the OPG when Nicholas 

still required the services of a guardian and the OPG had not 

located any person or entity willing and able to serve as a successor guardian. To address this assignment of error, we begin 

with an overview of the Public Guardianship Act.

The Public Guardianship Act was enacted in 2014 and 

became operative January 1, 2015. The Legislature’s reasons 

for adopting it are set out in § 30-4102:

(1) The Legislature finds that the present system of 

obtaining a guardian or conservator for an individual, 

which often depends on volunteers, is inadequate when 

there is no willing and qualified family member or other 

person available or willing to serve as guardian or conservator for such individual. The Legislature finds that there 

is a need to provide guardians and conservators when 

there is no one suitable or available with priority to serve 

the needs of such individual. The Legislature intends 

that establishment of the Office of Public Guardian will 

provide services for individuals when no private guardian 

or private conservator is available. The Legislature also 

finds that alternatives to full guardianship and less intrusive means of intervention should always be explored, 

including, but not limited to, limited guardianship, temporary guardianship, conservatorship, or the appointment 

of a payee. It is the intent of the Legislature to provide a 

public guardian or public conservator only to those individuals whose needs cannot be met through less intrusive 

means of intervention.

(2) The Legislature finds that:

(a) All individuals in need of a guardian or conservator shall have the opportunity to have one appointed 

for them;
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(b) The priorities for appointment in sections 30-2601 

to 30-2661 are appropriate in most instances;

(c) There are individuals in need of guardians or conservators for whom persons that have priority are unwilling, unable, or inappropriate to become a guardian or 

conservator;

(d) Guardians and conservators under the current system do not always carry out the assigned duties in a way 

that protects the individual and, in fact, sometimes carry 

out the duties in a way that abuses or neglects the individual; and

(e) For those for whom no person is available for 

appointment as guardian or conservator, the Office of 

Public Guardian may provide necessary services.

[7] These legislative findings demonstrate the Public 

Guardianship Act was intended as an option of last resort, 

to ensure that guardians are available for wards who have no 

family member or other person who is qualified, available, and 

willing to serve.

Section 30-4112 governs the appointment of the OPG 

and provides:

A court may order appointment of the Public Guardian . . . only after notice to the Public Guardian and a 

determination that the appointment or order is necessary and will not result in the Public Guardian having 

more appointments than permitted by section 30-4115. 

The determination of necessity may require the court to 

ascertain whether there is any other alternative to public 

guardianship or public conservatorship.

Read together, §§ 30-4102 and 30-4112 generally provide 

that appointment of the OPG is necessary only when the 

court determines no other qualified person or entity is available and willing to serve. In the instant case, the record does 

not show the OPG contested the necessity of its appointment 

on any basis, nor did the OPG claim the appointment would 
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result in having more wards than permitted under the Public 

Guardianship Act. 22

Because the Legislature intended the OPG to be a guardian 

of last resort, the Public Guardianship Act requires the OPG 

to “recruit members of the general public or family members 

to serve as guardians or conservators and provide adequate 

training and support to enhance their success.” 23 Moreover, 

once the OPG is appointed in a particular case, the Public 

Guardianship Act makes the OPG responsible for finding a 

successor guardian:

(1) Once the Public Guardian is appointed as guardian or conservator, the office shall make a reasonable 

effort to locate a successor guardian or successor conservator. By June 30 and January 1 of each year, [the 

OPG] shall file an aggregate report with the State Court 

Administrator describing its efforts to locate a successor 

guardian or conservator.

(2) Upon location of a successor guardian or successor 

conservator, the office shall file a motion with the court 

for termination or modification of the guardianship or 

conservatorship. Availability of a successor guardian or 

successor conservator shall be deemed a change in the 

suitability of the office for carrying out its powers and 

duties under section 30-4105. 24

Section 30-4103(9) of the Public Guardianship Act defines 

“[s]uccessor guardian” to mean “a person or entity who is 

recruited by the [OPG] to become a guardian for a ward previously served by the [OPG].”

Motions to discharge the OPG are governed by § 30-4117, 

which provides:

The Public Guardian may be discharged by a court 

with respect to any of the authority granted over a ward 

22 See § 30-4115(2) and (3).

23 § 30-4105(5).

24 § 30-4114.
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or protected person upon petition of such individual, 

any interested party, or the Public Guardian or upon the 

court’s own motion when it appears that the services of 

the Public Guardian are no longer necessary.

(Emphasis supplied.)

[8-10] This appeal is our first opportunity to consider how 

the above-quoted provisions of the Public Guardianship Act 

apply when the OPG moves to be discharged under § 30-4117 

on the ground its services are no longer necessary. In analyzing the requirements of § 30-4117, we apply settled principles 

of statutory construction. In construing a statute, a court must 

determine and give effect to the purpose and intent of the 

Legislature as ascertained from the entire language of the 

statute considered in its plain, ordinary, and popular sense. 25 A 

court must give effect to all parts of a statute, and if it can be 

avoided, no word, clause, or sentence will be rejected as superfluous or meaningless. 26 Components of a series or collection 

of statutes pertaining to a certain subject matter are in pari 

materia and should be conjunctively considered and construed 

to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. 27

As noted, § 30-4117 provides the OPG can be discharged 

only when its services are “no longer necessary.” In the instant 

case, the OPG’s motion for discharge alleged that Nicholas still 

required a full guardianship, but that the OPG’s services were 

no longer necessary because Nicholas had living parents who 

“are the more appropriate option and should be named successor guardians.” But as we explain, in order to demonstrate 

that the services of the OPG are no longer necessary, it is not 

enough to allege there is a family member who could serve as 

a successor guardian.

25 In re Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).

26 Id.

27 Id.
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[11] The Public Guardianship Act defines a “[s]uccessor guardian” as “a person or entity who is recruited by the 

office to become a guardian for a ward previously served by 

the [OPG].” 28 We understand this provision to require that 

a “successor guardian” must actually be willing to serve as 

guardian for the ward if appointed by the court. After all, the 

Public Guardianship Act was enacted to address the reality 

that often there is no “willing and qualified family member 

or other person available or willing to serve as guardian” 29

for a ward. The OPG is intended to serve as a guardian of 

last resort when an individual is in need of a guardian, but 

those with “priority are unwilling, unable, or inappropriate 

to become a guardian.” 30 It would defeat the purpose of the 

Public Guardianship Act to discharge the OPG upon proof that 

a family member with priority was available, but unwilling to 

accept appointment and become a guardian.

[12] We therefore hold that once the OPG has been appointed 

by the court, the Legislature has authorized just two circumstances under which the OPG may be discharged under 

§ 30-4117 on the ground its services are no longer necessary: 

(1) when the OPG has shown that the ward is no longer incapacitated and in need of a guardian or (2) when the OPG has 

located a successor guardian who is qualified, available, and 

willing “to become a guardian” 31 for the ward.

Here, the county court found, and the parties do not dispute, 

that Nicholas remains incapacitated and in need of a full guardianship. Therefore, the only available ground for discharge 

under § 30-4117 was that the OPG had located a successor 

guardian who was willing to become Nicholas’ guardian.

28 § 30-4103(9) (emphasis supplied).

29 § 30-4102(1).

30 § 30-4102(2)(c).

31 § 30-4103(9).
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Even before the hearing, it was apparent that both of the proposed successor guardians objected to appointment, and neither was willing to become a successor guardian for Nicholas. 

The parents’ position during the hearing did not change. It is 

certainly possible that with additional training and support from 

the OPG, 32 one or both of Nicholas’ parents might change their 

minds and become willing to serve as Nicholas’ guardian. But 

at the time the county court discharged the OPG, the parents 

were adamantly unwilling to serve as guardians for their son. 

This is precisely the sort of situation the Public Guardianship 

Act was established to address. And even if the county court 

thought there was a possibility the parents might change their 

minds and accept the appointment after the hearing, the better 

practice would have been to issue an order deferring discharge 

of the OPG until the successor guardians had accepted the 

appointment and letters had issued. Moreover, to the extent 

the county court’s remarks from the bench can be understood 

to suggest the parents bore the responsibility to find a successor guardian who was willing to work with their son, we note 

the plain language of the Public Guardianship Act places that 

responsibility exclusively with the OPG. 33

Finally, the OPG contends, for the first time on appeal, 

that even if its discharge was not proper under § 30-4117, we 

should find the discharge was justified under either § 30-2623 

or § 30-4116(2)(b). As we explain, neither statute applies.

Section 30-2623 is not part of the Public Guardianship Act; 

it instead governs the process for removal or resignation of 

private guardians. There is considerable conflict between the 

process for removing a private guardian under § 30-2623 and 

the process for discharging the OPG under § 30-4117. We 

32 See § 30-4105(5) (OPG “[s]hall recruit members of the general public or 

family members to serve as guardians . . . and provide adequate training 

and support to enhance their success”).

33 See §§ 30-4105(5) and 30-4114(1).
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find that § 30-4117 is the more specific statute, and therefore controls. 34

Nor does § 30-4116(2)(b) entitle the OPG to discharge. 

That statute authorizes the OPG to file motions to terminate 

or modify the guardianship, “or take any other legal action 

required to fulfill the duties and responsibilities of a guardian or conservator in accordance with the Public Guardianship 

Act.” 35 Here, the OPG was not asking to terminate or modify 

Nicholas’ guardianship under § 30-4116(2)(b); it was asking 

to continue the full guardianship but allow the OPG to be discharged because

[Nicholas’] behavior precluded the OPG from fulfilling 

[its] statutory duty. Because of his unending threats of 

violence toward OPG staff, a court order directed . . . 

Rotherham to have “no contact in any form” with him. 

She was thus unable to attend their “monthly visits” and 

could not “serve him as is statutorily required.” Nor, as 

discussed above, could any other OPG staff reasonably 

assume that role. 36

We reject the suggestion that discharge was the only way the 

OPG could fulfill its duties under the Public Guardianship 

Act. This court is well aware of the budgetary restrictions 

and caseload limitations with which the OPG must contend. 

And while threats of violence toward OPG staff must never 

be condoned and can have serious civil and criminal consequences, we see nothing in the Public Guardianship Act that 

allows the OPG to be discharged because its ward is exhibiting delusional and threatening behavior toward OPG staff. We 

emphasize that if any OPG staff members believe a ward is 

mentally ill and dangerous, 37 they should communicate such 

34 See Cox Nebraska Telecom v. Qwest Corp., 268 Neb. 676, 687 N.W.2d 

188 (2004).

35 § 30-4116(2)(b).

36 Brief for appellee at 20 (internal citations omitted).

37 See Neb. Rev. Stat. § 71-908 (Reissue 2018) (defining mentally ill and 

dangerous person).
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belief to the county attorney, who can take appropriate action 

pursuant to the Nebraska Mental Health Commitment Act. 38

But intractable wards like Nicholas are one of the reasons 

the OPG was established. The OPG is required to “maintain 

the appropriate personnel and workload scope necessary to 

fulfill all its responsibilities and duties,” 39 and it is authorized 

to hire a multidisciplinary team, which can include professionals with experience working with those who have dementia, 

developmental disabilities, chronic and acute medical needs, 

and mental health issues. 40 Therefore, when one associate 

public guardian is not able to effectively fulfill his or her 

duties, it is reasonable to expect that other members of the 

OPG’s multidisciplinary team will be made available so the 

OPG can fulfill its responsibilities under the Public Guardianship Act. Limited OPG staff resources is a valid reason, 

under the Public Guardianship Act, to refuse to accept further 

appointments, 41 but the Legislature did not make it a basis for 

seeking discharge.

On this record, the county court’s finding that Rotherham 

should no longer be the associate public guardian assigned 

to work with Nicholas was entirely warranted and supported 

by the evidence, but its decision to discharge the OPG altogether did not conform to the law and was not supported by 

competent evidence. Therefore, the OPG’s discharge must 

be reversed.

CONCLUSION

Currently, the Public Guardianship Act allows the OPG 

to be discharged only when its services “are no longer 

necessary.” 42 Under that exacting standard, which recognizes 

38 See Neb. Rev. Stat. § 71-921 (Reissue 2018).

39 § 30-4115(1)(a).

40 See § 30-4104(2).

41 See § 30-4115(2) and (3).

42 See § 30-4117.
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no exception for wards whose behavior is abusive or threatening, the OPG is effectively precluded from discharge so 

long as the ward remains incapacitated and in need of a 

guardianship, and no one else is willing to serve as a successor guardian.

Because the OPG failed to prove that its services were no 

longer necessary, the county court erred in discharging the 

OPG under § 30-4117. We must reverse the order of discharge 

and remand the cause for further proceedings consistent with 

this opinion.

Reversed and remanded for 

further proceedings.

Heavican, C.J., not participating.