In an analysis of a family dispute arising over the appointment of conservator order of an elderly mother, the court said that even if a legal right is not abated by the death of a protected party, state abatement laws require a suspension of an action or proceeding until an appropriate representative is substituted by a court.
Any appeal after the person’s death “could be continued only by someone statutorily authorized to represent [the deceased’s] interests,” the court said. “Because [the deceased's] attorney has not shown any interest in the litigation or authorization to continue her appeal, he lacks standing to seek any relief on her behalf.”
In the case under review, the daughter of Genevieve Franke sought conservatorship after her mother agreed to sell her farmland to her son at a below-market price, according to the order.
Franke also appealed the court’s previous appointment of a permanent conservator, and the son also appealed. But before the parties filed briefs, Genevieve Franke’s attorney filed a notice that Franke had died, the court said.
In response to a call from the Court of Appeals for the parties to show why the appeals should not be dismissed as moot, Franke’s daughter, Laurie Berggren, argued her appeal was not moot because a conservator has continuing duties for the estate even after a protected person dies, according to the order. Moreover, the children still had an interest in a decision on her competency and the appropriateness of the county conservator order, Berggren said.
The son, John Franke, also sought an order that his appeal to overturn the permanent conservator order was abated, though not mooted, by her death. The high court overruled those motions without prejudice and granted John Franke’s petition to bypass the Court of Appeals.
Genevieve Franke’s longtime attorney argued that Genevieve’s appeal be dismissed, while also petitioning the Supreme Court to vacate the county court’s conservatorship order, according to the order.
In his pleading, the attorney argued that some courts have decided that when people adjudicated as mentally incompetent die during an appeal, the abatement of the appeal requires a lower court’s orders to be vacated, the court said.
The high court noted that state law anticipates the substitution of a legal representative or successor in interest when a party dies. But without some express court authorization for the lawyer to take that role, the deceased’s attorney has no standing to carry on a pending appeal.
“Although an attorney of a deceased client may have a duty to protect the client’s interests by alerting a legal representative of his or her pending claim, absent a contractual agreement to the contrary, an attorney’s representation of a client generally ends upon the death of that client,” the court said in dismissing the Genevieve Franke appeal.
The court concluded that John Franke had standing to appeal the conservator order, although his standing should be limited to challenging the finding that Genevieve Franke needed a conservator at all.
“That issue is abated by Genevieve’s death. But Genevieve’s death abates only John’s appeal. It does not abate the cause of action or affect the validity of the county court’s orders appointing a conservator,” the court said, with issues of competency mooted by her death.
Jordan W. Adam of Fraser Stryker PC represents the appellant. Berggren is represented by Susan M. Koenig of Mayer Burns Koenig & Janulewicz. John Franke is represented by Robert Mooney of Gross & Welch PC.
The case is In re Conservatorship of Genevieve Franke, deceased. Laurie Berggren, appellee, v. Genevieve Franke, deceased, appellant, and John Franke, appellee, case number S-14-959 in the Nebraska Supreme Court.
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Conservator Appeal Dies When Client Does, Neb. Justices Say
This both makes sense and doesn't make sense. The appeal dies because the ward no longer can pay for it. But, what if the conservatorship is illegal? If that's the case, the players get by with it.
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