Opinion
No. A-10-1121.
10-11-2011
IN RE GUARDIANSHIP AND CONSERVATORSHIP OF MONROE COLEMAN, SR., A PROTECTED PERSON. MONROE COLEMAN, SR., APPELLANT, v. MONROE COLEMAN, JR., ET AL., APPELLEES.
Judith A. Wells, of Law Office of Judith A. Wells, P.C., L.L.O., and Amy L. Mattern for appellant. Thomas K. Harmon, of Law Offices of Thomas K. Harmon, for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the County Court for Douglas County: JEFFREY MARCUZZO, Judge. Affirmed.
Judith A. Wells, of Law Office of Judith A. Wells, P.C., L.L.O., and Amy L. Mattern for appellant.
Thomas K. Harmon, of Law Offices of Thomas K. Harmon, for appellees.
INBODY, Chief Judge, and SIEVERS and MOORE, Judges.
MOORE, Judge.
INTRODUCTION
Phyllis Forneret, daughter of Monroe Coleman, Sr., filed a petition in the county court for Douglas County, Nebraska, seeking an appointment of a permanent guardian and conservator for Monroe. Monroe objected to the petition. The county court found that Monroe was in need of a full guardian and conservator and that it was in the best interests of Monroe to appoint W. Henry Looby, a person without priority. Monroe appeals. Because the evidence is sufficient to support the county court's decision, we affirm.
BACKGROUND
Monroe was born in April 1919. He graduated as valedictorian of his class at Omaha South High School and studied sociology at the University of Nebraska at Omaha, Nebraska. He entered the military and eventually became a full colonel. Monroe was in the military approximately 32 years. He was also a member of the Omaha Police Department and went on to become deputy police chief. The record presented conflicting dates, but Monroe married Muriel Tilley Coleman in either 1937 or 1945. Monroe and Muriel were retired and living together in their home in Omaha up until 2009. Monroe and Muriel had three children: one son, Monroe Coleman, Jr. (Monroe Jr.), and two daughters, Forneret and Muriel Richards. At the time of the trial, Monroe Jr. lived in Colorado, Forneret lived in California, and Richards lived in Indiana.
Throughout the years, Monroe had a number of documented health issues, including problems with his vision and hearing. Monroe has diabetes, which does not require insulin, but he does need a balanced diabetic diet. He has not driven for over 20 years; Muriel did the driving.
Muriel traditionally did all of the housework, including cooking, cleaning, laundry, and paying the bills. When Muriel's health started to decline, Forneret became a long-distance caregiver for her parents from approximately 2004 through 2009. During those years, she would periodically visit her parents, during which time she would provide transportation to doctors' appointments, set up bill payment systems, cook and freeze food, do grocery shopping, and perform house maintenance.
On or about June 22, 2009, Muriel called Forneret to say she was really sick. Forneret arranged for Muriel to be taken to the hospital. Forneret received a call from the hospital and was informed that Muriel claimed there had been some spousal abuse. The hospital advised Forneret that either she could pick up Muriel or the hospital would put her in a women's shelter. Muriel told Forneret she wanted to live with Forneret in California.
A few weeks after Muriel moved to California, Forneret called Adult Protective Services (APS) and asked them to check on Monroe, since he was in the home by himself. At that time, APS reported things were "okay," but that Monroe was "on the verge" of needing care. Forneret's relationship with Monroe became strained because he believed Forneret "took his wife" away from him. Monroe became upset when Forneret called him, so Forneret relied on her sister, Richards, to keep her informed.
In February 2010, Monroe was hospitalized. This resulted from Monroe's having spent somewhere between 7 and 18 hours in the bathtub because he was unable to get out by himself due to his physical limitations and weakness. There was also concern that he may have had delirium or a "mini stroke."
On February 25, 2010, Forneret filed a petition in county court for appointment of a temporary guardian and permanent guardian and conservator for Monroe. The petition cited a medical report from a Dr. Beals stating, "[Monroe] does not show sufficient capacity at this time to make medical decisions. Will need surrogate decision maker." It also alleged that Muriel "would be unable to handle the task" at the time, and Forneret would accept the appointment. The county court appointed Forneret as temporary guardian of Monroe and granted her authority to freeze all accounts owned by Monroe except for the automatic deposit of income.
On March 15, 2010, Forneret filed a petition for appointment of a temporary conservator for Monroe. She cited an investigation by APS regarding the distribution of $33,000 from an account of Monroe to other family members. Forneret nominated an independent third party to be chosen by the court to act as temporary conservator to monitor and protect Monroe's funds. At a hearing on the petition, Monroe's attorney suggested Looby as someone he had worked with in the past and counsel further advised that he had no objection to Looby's appointment as temporary conservator. Forneret's attorney also did not object. The county court appointed Looby as temporary conservator.
At a hearing on April 22, 2010, the parties agreed that a successor temporary guardian should be appointed for Monroe. Forneret agreed to the change because she understood that Monroe was unhappy with her as guardian, and Forneret hoped it would lessen his anxiety. The parties agreed that Looby would be a suitable successor temporary guardian, and the county court appointed Looby as such. Monroe moved to an independent living facility in Omaha while under temporary guardianship.
On October 14, 2010, Muriel filed a nomination of Looby to serve as permanent guardian and conservator for Monroe. Trial was held on October 15.
Forneret testified that a guardian was necessary because Monroe requires supervision or special care. Forneret was concerned about Monroe's judgments about his well-being. At the time of the trial, Monroe was 91 years old and had no in-house support system. When Monroe was still living in his home, Forneret had witnessed him fall. Monroe told Forneret that he would "black out" and did not know what happened. According to Forneret, Monroe's house has lots of stairs, "rickety railings," and rugs which caused concern, and when Forneret last came to the house, it was "dangerously filthy." Forneret tried to decrease the dangers by installing railings and putting treads in the bathtub to reduce the risk of falls. It was also reported to Forneret that Monroe was washing his clothes in the bathtub. Other than his eye drops, Monroe was good about taking and managing his oral medications. However, he was not able to do the heart monitor test by himself.
Forneret believes there should also be a conservator for Monroe. Forneret was familiar with Monroe's abilities due to the care she provided for her parents over the years. Muriel historically paid the bills until she began to have her own health and memory issues, at which time Forneret took over these duties for both parents. After Forneret was appointed temporary guardian, she became aware that Monroe had several overdue bills that he had not paid.
Dr. Carl Greiner is a board-certified forensic psychiatrist. He is a professor of psychiatry and vice chair for clinical affairs at the University of Nebraska Medical Center. Greiner conducted a forensic examination with Monroe on April 9 and 27, 2010. The evaluation consisted of personal interviews with Monroe, a formal "Mini-Mental Status Exam" modified due to Monroe's visual difficulties, and receipt of collaborative history from doctors and family members.
Greiner described Monroe's self-history as "disorganized," because he had difficulty weaving together the information in a coherent way. Monroe told Greiner he married Muriel in 1937. This fact seemed inconsistent with the rest of his history because Monroe would have been only 17 years old at that time. Forneret did not think this date was accurate; however, no marriage license was entered into evidence to confirm the correct date. Monroe reported to Greiner that Muriel was stolen or kidnapped. Greiner was concerned about the use of those terms given Monroe's history in law enforcement.
As part of the evaluation, Greiner reviewed Monroe's medical records. In 2006, Monroe was diagnosed with dementia by his primary care physician. Greiner testified that dementia involves persistent and substantial problems with thinking. Greiner did not agree with this diagnosis, and the 2006 doctor's records were not introduced as part of the record.
According to the brain scans reviewed by Greiner, Monroe demonstrated ischemic changes, meaning limited bloodflow to the brain which can cause damage. The other issues identified by Greiner's review of Monroe's medical records include diabetes, atrial fibrillation (irregular heartbeat) requiring a pacemaker, hypertension, poor dental care, a broken rib, glaucoma, and prostatic hypertrophy (enlargement of the prostate).
While Greiner found Monroe to be accomplished and intelligent with strong endurance and persistence, he found Monroe to have lost a considerable amount of ability. Greiner noted that Monroe is able to walk with a walker, feed and dress himself, go to the restroom on his own, and maintain a basic conversation. Monroe received a 27 out of 29 points on the "Mini-Mental Status Exam," which Dr. Greiner testified was a "good score."
Greiner's evaluation concluded with a diagnosis of minimal cognitive disorder which involves impairment of occupational, social, or individual functioning but is not as severe as dementia. Greiner noted that Monroe's short-term memory functions reasonably well, as indicated by his high score on the "Mini-Mental Status Exam." However, he has difficulty with his long-term memory based on the small injuries in his brain. Greiner explained the problem is not necessarily with being able to communicate to Monroe what his problems are, but with that information leading him to be effective in handling them. Greiner said the effect of depression and anger issues are also complicating factors and could "get in the way" of Monroe's making reasoned judgments. Greiner believes that Monroe will continue to require ongoing medical care and that his mild cognitive dysfunction will worsen over time.
Greiner was also concerned about information he received regarding Monroe's finances. Greiner learned from Monroe Jr. and Forneret that large amounts of money had been given to Richards by Monroe. However, neither Monroe Jr. nor Forneret testified regarding these transactions and no bank records were entered into evidence to substantiate the claims. Greiner testified that Monroe has diminished capacity in his ability to think and reason through situations.
Dr. Edward Vandenberg, a geriatrician, also performed an evaluation of Monroe. vandenberg is board certified in geriatrics, a staff physician and associate professor of geriatrics at the University of Nebraska Medical Center, and the director of the geriatric evaluation and management clinics at "the VA." Vandenberg saw Monroe at the clinic on April 14, 2010. He obtained most of Monroe's medical records, except those from his primary care physician. The clinic also took a history from Monroe, as well as from collaborative sources gathered by the social worker, and performed a physical examination, bloodwork, and imaging scans.
Like Greiner, Vandenberg was concerned with the medical history given by Monroe because it was inconsistent with the medical records. The discrepancies caused vandenberg to worry about cognitive problems. For example, Monroe believed his wife would return and care for him, which belief conflicted with the information gathered by the social worker.
The radiology report indicated that Monroe had a small stroke injury in his basal ganglia and the right thalamic area. According to vandenberg, injuries to this area are linked with cognitive decline. Monroe also took a cognitive test called MOCA, similar to the "Mini-Mental Status Exam" Monroe did with Greiner, which gives a barometer of a person's loss. Monroe's scores, although modified for his vision impairment, showed a decline from "normal." The neuropsychological portion of Vandenberg's evaluation showed Monroe's memory as average and his verbal functions as normal, but his executive functioning showed problems.
Vandenberg's physical examination of Monroe showed some arthritis in his knees, dental disease, significant vision impairment, swallowing problems, hypertension, diabetes, irregular heart rate, urinary incontinence, mild hearing impairment, and some kidney decline.
Based on the information in his evaluation, vandenberg diagnosed Monroe with mild cognitive impairment nonanamnestic executive dysfunction. "Mild cognitive impairment" indicates he is not yet at the level of dementia but not "normal." "Non-anamnestic" means Monroe's memory is still intact, and "executive dysfunction" means his decisionmaking ability is impaired. Vandenberg expressed concern about Monroe's ability to process information and make good judgments in his own behalf or others. vandenberg did not believe Monroe has the functioning capacity to comply with the medical recommendations to reduce his risks and get his health under control.
Monroe had a history of nontreatment for his various medical issues. Greiner found that to be significant because it relates to the patient's judgment. Monroe did not regularly take his eye drops or follow up with his vision problems. His primary care physician wanted Monroe to receive treatment for his poor dental health, but Monroe refused. While he was still living in his home, Richards set up Monroe with a Meals on Wheels program, but he refused the service. Monroe was warned against mowing the lawn, but he continued to do so even in the summer heat. His family offered to hire a lawn service, but he refused. Monroe also refused a security bracelet which would alert someone if he fell in the home.
Gregory Kosmicki from APS testified that there was an investigation into a report of possible financial exploitation of Monroe. APS obtained records from Monroe's bank and credit union. APS was unable to substantiate the allegation of financial exploitation, in part because there was not yet a determination that Monroe was unable to manage his own affairs. However, there were many transactions between 2007 and 2010, including approximately $250,000 worth of withdrawals, which raised concern because APS could not verify where the money was going. During this time, Monroe did not have any obvious expenses to account for thousands of dollars being withdrawn every month.
Monroe testified that if a guardian was appointed to care for him, he would prefer that it be one of his two younger sisters or his nephew. Monroe was not specifically asked about his preference for a permanent conservator. Monroe's nephew testified that he has provided "small care" for Monroe in the past, he loves his uncle, and he would serve in the capacity of guardian if appointed. One of Monroe's younger sisters testified that she loves her brother and that she is able and willing to serve as guardian if appointed. Another of Monroe's younger sisters also testified that she loves her brother and that she would serve as his guardian if appointed.
At the time of the trial, Monroe and Muriel had been living apart for over 1 year and were still legally married, but Monroe had not provided any financial support for her. In August 2010, Muriel filed a claim in the county court requesting back and future support.
Looby is a clinical gerontologist in Omaha. He owns a care agency providing patient assistance, transitions from home to nursing homes or assisted living, trust work, and work with the courts as guardians and conservators. He has served as both a guardian and a conservator on many occasions over the last 20 years. At the time of the trial, he had approximately 30 wards.
After his appointment as temporary conservator and guardian for Monroe, Looby followed the county court's directions for Monroe to complete an assessment at the University of Nebraska Medical Center and a psychiatric review. Looby provided financial support for Monroe, and he set up Monroe at an independent care facility with staff support. Looby started Monroe with the least restrictive form of care; family members requested a nursing home, but doctors' recommendations did not support that level. Looby staffs Monroe with two shifts a day, where he receives assistance with bathing, getting dressed, maintaining hygiene, taking medication, and monitoring of his vital signs. A nurse is on duty 24 hours a day, and case aides are also available. The doctors and nutritionist recommended a diabetic diet, which is prepared at the facility for Monroe. In this setting, Monroe has put on weight.
Looby reviewed the financial information provided by the family members and followed the court's directive to "lock down" Monroe's finances except to provide for his direct care. Looby believed there will come a time when Medicaid will be an issue because of the pending separation with Muriel which will divide their resources.
Monroe did not want to meet with Looby, but Looby did observe him from a distance at the assisted living facility and at the trial. Monroe refused to see Looby on at least two separate occasions, and Looby did not try to "force" himself upon him. As temporary conservator, Looby did not want to take advantage of Monroe without his permission, so he assisted Monroe with living his life without Looby inserting himself more than necessary.
Looby testified he would continue to serve as permanent guardian and conservator if the county court found the arrangement to be in Monroe's best interests. At the time of the trial, Looby had served as temporary conservator and guardian for over 6 months.
In an order entered on October 18, 2010, the county court appointed Looby as permanent guardian and conservator of Monroe based upon the testimony of the witnesses and the pleadings filed.
Monroe subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Monroe asserts, consolidated and restated, that the county court erred (1) in finding Monroe is incapacitated and appointment of a guardianship was necessary or desirable; (2) in finding a full guardianship as opposed to a limited guardianship is necessary; (3) in finding Monroe is unable to manage his property effectively and has property that will be wasted or dissipated unless proper management is provided; and (4) in appointing Looby, a person without priority, to serve as guardian and conservator.
STANDARD OF REVIEW
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
Guardianship.
Monroe argues that there was insufficient evidence for the county court to find by clear and convincing evidence that he is incapacitated and requires a guardianship.
A guardian may be appointed if the court is satisfied by clear and convincing evidence that the person is incapacitated and the appointment is necessary or desirable as the least restrictive alternative available for providing continuing care or supervision. Neb. Rev. Stat. § 30-2620 (Reissue 2008).
The medical testimony provided in the record by Greiner and Vandenberg established Monroe is incapacitated and in need of a guardianship for continued care. Their testimony showed that Monroe has numerous medical problems that he has not been able to adequately take care of on his own. He has suffered a small stroke and has limited bloodflow to his brain. Both doctors diagnosed Monroe with mild or minimal cognitive impairment, which has impaired his ability to process information and make decisions. Greiner opined that Monroe will continue to require ongoing medical care and that his cognitive dysfunction will worsen over time. Vandenberg opined that Monroe did not have the functioning capacity to comply with medical recommendations to reduce his health risks.
According to the record, Monroe has a history of failing to get treatment for his various medical issues and of refusing to accept assistance with care in his home. The record is clear that Monroe is no longer able to safely live alone. There was no evidence presented that any family members were willing and able to provide the type of in-home care Monroe would require. Nor was there evidence, given Monroe's negative experiences living alone, that he understood his limitations and would comply with the doctor's recommendations on his own. The record further shows that Monroe's condition has improved since moving into the independent living facility and under Looby's temporary guardianship. Given the evidence regarding Monroe's medical condition and cognitive impairment, we find no error appearing on the record regarding the county court's finding by clear and convincing evidence that a guardianship was necessary. See In re Conservatorship of Gibilisco, supra. The decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.
Full Versus Limited Guardianship.
The next error asserted by Monroe is that if a guardian should be appointed, the county court should have established a limited, rather than a full, guardianship.
With regard to the establishment of a limited or full guardianship, § 30-2620 sets forth the following in relevant part: "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."
In the instant case, the county court found by clear and convincing evidence that Monroe was an incapacitated individual whose best interests would be served by the appointment of a guardian to provide continuing care and supervision. The county court also found Monroe to be in need of a full guardianship as opposed to a limited guardianship.
Monroe cites In re Guardianship & Conservatorship of Hartwig, 11 Neb. App. 526, 656 N.W.2d 268 (2003), in support of his request for a limited rather than full guardianship. In In re Guardianship & Conservatorship of Hartwig, the alleged ward had granted her son a durable power of attorney and had been living in a nursing home for nearly 3 years prior to her grandson requesting appointment as guardian and conservator of her estate. We determined that the ward's son was given the same powers that a guardian and conservator would have under the durable power of attorney and that he was serving her interests in that role. Given the evidence of her son's close attention to her and her care in the nursing home, there was no evidence she was not properly cared for or that she would be better cared for if someone other than her son cared for her. Therefore, we reversed the appointment of a guardian and conservator as unnecessary; there was no discussion of a limited guardianship.
The facts of In re Guardianship & Conservatorship of Hartwig do not support Monroe's assertion that a limited guardianship would be appropriate in his case. One primary difference is that the ward in In re Guardianship & Conservatorship of Hartwig had an attorney in fact who had been providing the necessary care for some time. In the present case, Monroe does not have an attorney in fact nor any family member who has been shown to be capable of caring for him. The record contains evidence regarding Monroe's capabilities and needs which have been thoroughly outlined in the previous section. Monroe attempts to shift the focus away from his cognitive deficiencies and wishes to focus only on his physical limitations; however, the evidence previously discussed clearly emphasizes the need for a full guardianship. We conclude that the county court did not err in finding by clear and convincing evidence that a full guardianship for Monroe was necessary. Our review does not find any error appearing on the record; the county court's decision to appoint a full guardianship conforms to the law, is supported by competent evidence and is neither arbitrary, capricious, nor unreasonable. In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (2009).
Conservatorship.
Monroe also challenges the appointment of a conservator and the sufficiency of the evidence supporting the county court's finding that he is unable to manage his property and that his property will be wasted or dissipated unless proper management is provided.
The standard for appointment of a conservator is found in Neb. Rev. Stat. § 30-2630(2) (Reissue 2008):
Appointment of a conservator . . . 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 deficiency, physical illness or disability . . . and (ii) the person has property which will be wasted or dissipated unless proper management is provided . . . .
While advanced age alone is not a basis for appointing a conservator, it is evident from the record that Monroe has numerous physical and mental health barriers which affect his ability to effectively manage his property. See In re Estate of Wagner, 220 Neb. 32, 367 N.W.2d 736 (1985).
Based on the evidence provided in the record, we conclude the county court did not err in finding by clear and convincing evidence that Monroe is unable to manage his property effectively and that he has property which will be wasted or dissipated unless proper management is provided. Monroe has no experience managing his own financial affairs, and the unpaid bills while he was living on his own are evidence that he is unable to properly manage his finances. Although no bank statements or other financial records were entered into evidence, there is evidence in the record of large unexplained expenditures or withdrawals from Monroe's accounts. And, the medical opinions of Greiner and Vandenberg indicate that Monroe's ability to process information and make decisions is impaired due to his cognitive deficits. The record supports the county court's decision. The appointment of a conservator for Monroe was not in error.
Appointment of Looby as Guardian and Conservator.
Based upon all of the evidence, the county court found that the appointment of Looby as both conservator and guardian is in the best interests of Monroe "because he is the nominee" of Muriel, Forneret, and Monroe Jr., even though Looby is a person without priority.
Monroe argues the appointment of Looby as guardian and conservator is improper because (1) the county court did not consider Monroe's expressed wishes as to whom he would prefer as a guardian and conservator and (2) the county court appointed a person without priority as guardian and conservator.
The basic requirements for who may be appointed as a guardian or conservator are similar, but not identical. We will address them each in turn. The relevant parts of the guardianship statute require the person to be competent and exhibit the ability to exercise the powers as guardian. Neb Rev. Stat. § 30-2627(a) and (b) (Reissue 2008). Those who qualify are then designated with priority in the following order:
(1) A person nominated most recently by one of the following methods:§ 30-2627(b).
(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.
Section 30-2627(c) further explains the process of appointing a guardian:
When appointing a guardian, the court shall take into consideration the expressed wishes of the allegedly incapacitated person. The court, acting in the best interest of the incapacitated person, may pass over a person having priority and appoint a person having lower priority or no priority. With respect to persons having equal priority, the court shall select the person it deems best qualified to serve.
Neb. Rev. Stat. § 30-2639 (Reissue 2008) outlines a similar process for appointing a conservator. The person must exhibit the ability to exercise the powers to be assigned, and the order of priority is delineated as follows:
(1) A person nominated most recently by one of the following methods:§ 30-2639(b).
(i) A person nominated by the protected person in a power of attorney or 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 protected person;
(2) A conservator, guardian of property, or other like fiduciary appointed or recognized by the appropriate court of any other jurisdiction in which the protected person resides;
(3) An individual or corporation nominated by the protected person if he or she is fourteen or more years of age and has, in the opinion of the court, sufficient mental capacity to make an intelligent choice;
(4) The spouse of the protected person;
(5) An adult child of the protected person;
(6) A parent of the protected person or a person nominated by the will of a deceased parent;
(7) Any relative of the protected person with whom he or she has resided for more than six months prior to the filing of the petition;
(8) A person nominated by the person who is caring for him or her or paying benefits to him or her.
Further directions are found in § 30-2639(c):
When appointing a conservator, the court shall take into consideration the expressed wishes of the person to be protected. A person having priority listed in subdivision (2), (4), (5), (6), or (7) of subsection (b) of this section may nominate in writing a person to serve in his or her stead. With respect to persons having equal priority, the court shall select the person it deems best qualified of those willing to serve. The court, acting in the best interest of the protected person, may pass over a person having priority and appoint a person having lower priority or no priority.
Monroe argues that the county court erred in failing to consider his expressed wishes in the appointment of the guardian and conservator. We first note that although Richards was designated as Monroe's power of attorney according to a filing with the county court on March 4, 2010, Richards was neither present at the trial nor suggested by any party as a possible guardian or conservator. The record is unclear and entirely absent as to whether the power of attorney was revoked or what reasons explain her absence. Further, there was no written nomination by Monroe of either a guardian or conservator.
Although the county court did not specifically state in its order that it took into consideration Monroe's requests for his sisters or nephew to be appointed as his guardian, it did generally state that it took into consideration "the testimony of all witnesses." As such, we presume that Monroe's testimony was considered.
The testimony from Monroe, his sisters, and his nephew was incredibly short and provided the court with no real evidence as to why these three persons were suitable to provide the necessary care for Monroe. Merely being suggested as potential guardians by Monroe did not relieve the court from determining what is in Monroe's best interests. We find no error in the court's decision not to appoint as guardian any of the individuals requested by Monroe.
Monroe next argues that the court erred in appointing a person without priority absent a finding that it was in his best interests.
Since there was no person nominated by Monroe, the guardianship and conservatorship statutes provide that those with the next level of priority would be Monroe's spouse, followed by his children. However, the evidence adduced at trial makes it clear that Muriel is not qualified as a possible guardian or conservator and does not have the ability to exercise the necessary powers. See, § 30-2627(a); § 30-2639(a). Muriel is living with, and being cared for by, Forneret in California. Forneret testified that Muriel has some diminished capacity and short-term memory issues. Muriel has given Forneret power of attorney.
Next in line of priority are Monroe's adult children. There was no suggestion that Richards would be suitable to act as guardian or conservator, and Richards did not appear at trial. The evidence shows that Forneret and Monroe Jr., although willing to serve as guardian and conservator, both have strained relationships with Monroe, and they both reside outside the State of Nebraska. Further, Monroe admits in his brief that neither Forneret nor Monroe Jr. would be best qualified to serve as guardian.
The county court appointed Looby, a person without priority, in part based upon the nominations by Muriel, Forneret, and Monroe Jr. The guardianship statutes do not allow for a person with priority to nominate a guardian and therefore the court's reference to the nomination of Looby by Monroe's wife and children was in error. On the other hand, the conservatorship statutes do allow a person having priority to nominate in writing a conservator to serve in his or her stead. § 30-2639(c). Although Muriel nominated Looby in writing to serve as conservator, because she would not qualify as an individual with priority to serve as conservator, her written nomination does not have any effect on priority. § 30-2639. Forneret and Monroe Jr. orally nominated Looby, as opposed to in writing.
We conclude that while the county court's reliance on the nomination of Looby was in error, we nevertheless find that any error is harmless as there is sufficient evidence in the record to support a finding that Looby's appointment as guardian and conservator was in Monroe's best interests.
Forneret testified that appointment of Looby would be in Monroe's best interests because Looby is a "professional" and has demonstrated "kind, loving care" of Monroe. She also observed that Looby has demonstrated "nothing but the best of care" for Monroe and had brought Monroe to a point that at the trial, Monroe was "really looking good." Specifically, Forneret noted that Monroe had his hair cut, was well shaven, and looked like he had put on weight since Looby's appointment as temporary guardian and conservator.
Looby has considerable experience in providing professional services as a guardian and conservator. The record shows that Looby is concerned about Monroe's well-being, has demonstrated an understanding of Monroe's needs and limitations, and has been responsible in his care of Monroe during the temporary period. Monroe did well under Looby's care. Therefore, the county court did not err in appointing Looby, a person without priority, as conservator and guardian of Monroe, and there was sufficient evidence to support the appointment as being in Monroe's best interests. The decision to appoint Looby conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. See In re Conservatorship of Gibilisco, 277 Neb. 465, 763 N.W.2d 71 (2009).
CONCLUSION
We conclude that the county court did not err in finding that a full guardianship and conservatorship was necessary for Monroe and in appointing Looby as guardian and conservator.
AFFIRMED.