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In re Barnhart

Supreme Court of Nebraska

March 6, 2015

IN RE GUARDIANSHIP AND CONSERVATORSHIP OF DONALD D. BARNHART, A PERSON IN NEED OF PROTECTION. ALICE F. BARNHART AND SHERRY HEADY, APPELLEES,
v.
VALLEY LODGE 232 A.F. & A.M. ET AL., APPELLANTS

Page 857

[Copyrighted Material Omitted]

Page 858

Appeal from the County Court for Douglas County: MARCELA A. KEIM, Judge.

Affirmed.

Michael C. Cox, Heather Voegele-Andersen, Brenda K. Smith, and John V. Matson, of Koley Jessen, P.C., L.L.O., for appellants.

Daniel J. Guinan and David C. Mullin, of Fraser Stryker, P.C., L.L.O., for appellees.

HEAVICAN, C.J., CONNNNOLLY, STEPHAN, MCCORMACK, and CASSEL, JJ. Wright, J., participating on briefs. Miller-Lerman, J., not participating.

OPINION

Page 859

[290 Neb. 316] McCormack, J.

NATURE OF CASE

Donald D. Barnhart (Barnhart) is deemed incapacitated and in need of protection. His wife, Alice F. Barnhart, and his stepdaughter, Sherry Heady, petitioned to become his coguardians and coconservators. The guardianship and conservatorship is contested by alleged beneficiaries of Barnhart's prior will. These parties contend that they are interested parties to Barnhart's welfare and, thus, have standing to contest the will. The prior beneficiaries are Valley Lodge 232 A.F. & A.M.; Chrysolite

Page 860

Lodge No. 420 A.F. & A.M.; Alegent Health Community Memorial Hospital of Missouri Valley, Iowa; and Senior Citizens of Western Harrison County, Iowa, Inc. (collectively the objectors). The issue in this case is whether or not the objectors are " any person interested in [Barnhart's] welfare" under Neb. Rev. Stat. § 30-2619 (Reissue 2008) when their only claimed interest in the case is a beneficial interest in a will.

BACKGROUND

Barnhart's Assets and Estate Plan

Barnhart's assets include farmland that has not yet been appraised, but is " in excess of 400 acres" located in Harrison County, Iowa; an investment account valued at $91,000; a checking account valued at $89,000; and a 2007 Honda Accord valued at $7,000.

[290 Neb. 317] In 2000, Barnhart executed a will (the 2000 will). At that time, he was not married and did not have any children. The 2000 will left 40 percent of Barnhart's residual and remainder estate to Valley Lodge No. 232 A.F. & A.M., 20 percent of his residual and remainder estate to Chrysolite Lodge No. 420 A.F. & A.M., 20 percent of his residual and remainder estate to Alegent Health Community Memorial Hospital of Missouri Valley, and 20 percent of his residual and remainder estate to the Senior Citizens of Western Harrison County.

In 2003, Barnhart married Alice. As Barnhart's wife, Alice is his closest living relative. Heady is Alice's daughter and is Barnhart's attorney in fact under a durable power of attorney document executed on November 8, 2009.

Barnhart's brother died in 2012. Barnhart's brother left all of his residue to the same organizations named in Barnhart's 2000 will--the objectors in this case. Alice and Heady allege that Barnhart decided he did not want his estate to go the same way as his brother's and decided that instead, he wanted his property to go to Alice.

In November 2012, Barnhart executed a new estate plan, including a will and a trust agreement creating the Donald Barnhart Revocable Trust (2012 estate plan). Alice and Heady are the beneficiaries of the 2012 estate plan. The objectors, beneficiaries of the 2000 will, are not designated as beneficiaries of the 2012 estate plan.

Original Petitions for Guardianship and Conservatorship

The exact date of Barnhart's incapacity is uncertain, but in affidavits to the court, Heady states that Barnhart was admitted to the hospital in the spring of 2013 with the sudden onset of severe psychological symptoms. At that time, Barnhart was declared a " 'danger to himself and others.'" Subsequently, Barnhart was placed in the Douglas County Health Center and remains there to this date. Heady states in her affidavit to the court that Barnhart's condition renders him unable to make " responsible decisions concerning his medical care or his finances."

[290 Neb. 318] Heady states that she attends meetings with the professionals at Douglas County Health Center once every 3 months to discuss Barnhart's treatment. Heady also states that she visits Barnhart on a weekly basis.

On November 27, 2013, Alice and Heady petitioned for appointment of emergency temporary and permanent coguardians and coconservators in the county court for Douglas County, Nebraska. On the same date, the petition for temporary coguardianship and coconservatorship was granted by the county court, and Alice and Heady became temporary coguardians and coconservators.

Page 861

On January 21, 2014, the objectors filed in the county court a joint " Objection to Amended and Corrected Petition for Appointment of Emergency Temporary and Permanent Co-Guardians and Co-Conservators of an Incapacitated Person." The objectors claim that the guardianship and conservatorship contest is in the best interests of Barnhart ...


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