Guardianship and Conservatorship of Sim, In re

• Decision Date: 10 April 1987
• Docket Number: Nos. 85-422,85-922,s. 85-422
• Citation: 225 Neb. 181,403 N.W.2d 721
• Parties: In re GUARDIANSHIP AND CONSERVATORSHIP OF Maude Clevenger SIM. Maude Clevenger SIM, Appellant, v. Edith WRIGHT and Opal C. Comiskey, Appellees. In re ESTATE OF Maude Clevenger SIM. Maude Clevenger SIM, Appellee, v. Edith WRIGHT and Opal C. Comiskey, Appellees, Alan M. Wood, Guardian and Conservator, Appellant.
• Court: Nebraska Supreme Court

Page 721

403 N.W.2d 721

225 Neb. 181

In re GUARDIANSHIP AND CONSERVATORSHIP OF Maude Clevenger SIM.

Maude Clevenger SIM, Appellant, v. Edith WRIGHT and Opal C. Comiskey, Appellees.

In re ESTATE OF Maude Clevenger SIM.

Maude Clevenger SIM, Appellee, v. Edith WRIGHT and Opal C. Comiskey, Appellees, Alan M. Wood, Guardian and Conservator, Appellant.

Nos. 85-422, 85-922.

Supreme Court of Nebraska.

April 10, 1987.

Syllabus by the Court

1. Guardians and Conservators: Appeal and Error. The district court's and Nebraska Supreme Court's scope of review of proceedings to appoint a guardian or a conservator is for error appearing on the record made in the county court.

2. Constitutional Law: Legislature: Presumptions. Attached to every constitutional challenge is the presumption that acts of the Nebraska Unicameral are constitutional, with all reasonable doubts resolved in favor of constitutionality.

3. Constitutional Law: Legislature: Presumptions. The presumption of constitutionality continues until the statute under review clearly appears to contravene some constitutional provision.

4. Constitutional Law: Legislature: Presumptions. Because statutes are presumed to be constitutional, the burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

5. Guardians and Conservators. One may not have his or her property taken away and placed in the hands of a conservator merely because potential heirs believe there will be more left for them if the owner is not free to deal with the property as he or she chooses.

6. Guardians and Conservators. A conservator may be appointed for one who, because of advanced age, is unable to manage and will therefore waste or dissipate his or her property unless proper management is provided.

7. Guardians and Conservators. Each case seeking the appointment of a guardian or conservator must be determined upon its particular facts, the question being whether the record is such as to establish that the statutory grounds for appointment of a guardian or conservator exist.

8. Actions: Pleadings. The fact a party may be entitled to require a more definite statement from a petitioner does not necessarily mean that the statement as originally made was not sufficient to state a cause of action.

9. Actions: Pleadings. The failure to make a timely demand for a more definite statement from a petitioner waives the right to such a statement.

10. Constitutional Law: Guardians and Conservators: Mental Health. The subject of a proceeding to determine the need for a guardian or conservator has no fifth amendment right to remain silent during the course of a psychiatric examination.

11. Trusts: Accounting. No trust instrument can relieve a trustee from a duty to account to interested persons.

Harvey A. Neumeister, Nebraska City, Kent J. Neumeister, and J. Patrick Green, Omaha, for appellant Sim.

Richard H. Hoch of Hoch & Steinheider, Nebraska City, for appellees Wright and Comiskey.

Alan M. Wood, Syracuse, guardian and conservator.

Robert M. Spire, Atty. Gen., and Ruth Anne Evans, Lincoln, for amicus curiae State.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ.

CAPORALE, Justice.

I. INTRODUCTION

These cases, which were consolidated for argument on the court's own motion, arise from a petition by Edith R. Wright and Opal C. Comiskey to have a guardian and conservator appointed for their 87-year-old half sister, Maude Clevenger Sim, with whom they share a common father. The cases constitute the third and fourth appearances of this matter in this court. In the first appearance, Sim v. Comiskey, 216 Neb. 83, 341 N.W.2d 611 (1983), we affirmed the district court's dismissal of the effort by Sim's attorneys to enjoin the county court proceeding which ultimately led to the designation of Alan M. Wood, a member of the bar of this state, as Sim's guardian and conservator with limited powers, a designation the district court later affirmed but modified by eliminating the limitations, and now appears before us the third time as case No. 85-422, In re Guardianship and Conservatorship of Maude Clevenger Sim. In the second appearance, In re Guardianship and Conservatorship of Sim v. Comiskey, 216 Neb. xxvi (case No. 83-873, Jan. 23, 1984), we dismissed as premature (that is, for lack of jurisdiction) the appeal taken by Sim's attorneys from an order of the county court which appointed physicians to examine Sim. In the remaining, or fourth, appearance, case No. 85-922, entitled In re Estate of Maude Clevenger Sim, the designated guardian and conservator appeals the district court's refusal to issue letters of appointment. For the reasons hereinafter discussed, we affirm as modified the judgment of the district court in case No. 85-422 and dismiss as moot the appeal in case No. 85-922.

II. FACTS

In the summer of 1981, Wright began to see Sim lose her train of thought, and in May of 1982 saw Sim's mental capacities diminish further. For example, when Wright and Sim were watching a television evangelist, Sim arose from the davenport and, referring to the television program, announced, "He's going to kill me. He's going to kill me. Help, they're going to put me up as a sacrifice." As another example, Sim would light the electric stove, forget to turn it off, and burn up whatever had been placed thereon. By July of 1982, Sim could hardly recognize where she was going. She would get lost very easily, including in the grocery store. Sim would tell Wright that she was going to a certain place, but would head in the other direction. Sim would say, "I'm going to the bathroom" and then get lost behind the French door in the living room.

Robert S. Comiskey is married to Joan Comiskey and is the son of Opal Comiskey, notwithstanding the fact he testified that Sim was "the only mother I've ever had." Robert and his wife had apparently lived with "Aunt Maude" since 1975. Robert performed simple maintenance around the house, mowed the lawn, and painted; Joan cooked, drove, and occasionally did Sim's laundry. Sometime in June of 1982, Wright suggested that she and her husband, Vance, move in and take over the job of caring for Sim.

Sim fell and injured her hip and elbow on June 25, 1982. She was taken to St. Mary's Hospital in Nebraska City and, in addition to the injuries, was provisionally diagnosed as having organic brain syndrome. The medical reports show that she had been deteriorating mentally. Family members reported that Sim had been having hallucinations but that her prescribed medication, Haldol, had been helping. Sim was finally diagnosed as having parkinsonism, among other things. Parkinsonism is the condition characteristic of Parkinson's disease, a neurological disorder usually due to arteriosclerotic changes in the basal ganglia of the brain, and marked by muscular tremors, droopy posture, rigidity, and a masklike facial expression. 3 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder P-51 (1987). Sim's discharge summary of July 6, 1982, also reports that she "was confused off and on" and that "[s]ometimes she didn't even remember her sister's name when she was in the room or the doctor's name." Sim was transferred to Clarkson Hospital in Omaha to see a neurologist. The July 6, 1982, discharge summary also shows that "[t]his was requested partly by the family and partly by Mr. [Harvey] Neumeister, a lawyer friend of hers." A computerized axial tomography (CAT) scan revealed the presence of Alzheimer's disease, a form of mental deterioration marked by a wasting of the cortex of the brain and the development of argyrophil plaques. 1 J.E Schmidt, supra at A-159. The discharge summary further states that Sim's "prognosis is poor as far as the Alzheimer's with gradual deterioration. She has organic brain syndrome and needs somebody to keep an eye on her." On July 2, 1982, one of Sim's half sisters discussed with Sim's doctor the possibility of applying for appropriate guardianship. The doctor's notes from July 2, 1982, indicate that the doctor thought that was very reasonable.

When Sim left the hospital and returned home, Opal Comiskey stayed with Sim to care for her needs. Opal Comiskey had the locks changed on or about August 5, 1982, "to keep Joan [Comiskey] from running in and out whenever she chose." According to Opal Comiskey, Harvey A. Neumeister "had charge of" Sim's money already, at this time, and Opal Comiskey would sometimes have to use her own money to buy groceries for Sim.

A few days after Opal Comiskey was no longer able to care for Sim, another friend, Helen Gladys Parks Beccard, who was herself then 89 years old, came to care for her.

Sim was taken to Duff's Nursing Home in Nebraska City on August 10, 1982, by Joan Comiskey, Gladys Beccard, and perhaps Margaret Kreifels. The nursing home was told to send the bills to Harvey Neumeister. Harvey Neumeister regularly called upon Sim at the nursing home and conferred with the nursing home about the care Sim was receiving and the care she might need. Opal Comiskey was not informed that Sim had been taken to a nursing home and did not know Sim's whereabouts for 2 weeks, when she read about Sim in the nursing home news. In fact, Opal Comiskey was kept from visiting Sim until more than 1 month after she and Wright, on September 3, 1982, petitioned for the appointment of a guardian and conservator for Sim on the basis that because of physical disability and advanced age, Sim could not take care of herself or her assets. Following that filing, on application of the half sisters, the court issued an order certifying that there were no restrictions on visiting Sim.

The county court set a hearing on the petition for September 24, 1982, appointed a provisional guardian ad litem for Sim, and appointed a physician to examine Sim and submit a report to the court. Before the hearing could be held, however, Harvey A. Neumeister and his son, Kent J. Neumeister,...