No Standing

Does an attorney have standing to proceed to represent a client in a conservatorship matter after the client has died?

No, according to a decision just released by the Nebraska Supreme Court.

This appeal involves a dispute between Genevieve Franke’s children regarding the county court’s appointment of a conservator for her. Genevieve has since died.

Genevieve’s daughter, Laurie Berggren, sought the conservatorship after Genevieve agreed to sell her farmland to her son John Franke at a price below its fair market value. Genevieve appealed from the court’s appointment of Cornerstone Bank as her permanent conservator. John also appealed. But before the parties filed briefs, Genevieve’s attorney filed a suggestion of death with the Nebraska Court of Appeals stating that Genevieve had died on December 31, 2014.

This appeal presents four issues. First, does Genevieve’s attorney have standing to continue representing a deceased client in an appeal without authorization from Genevieve’s legal representative? Second, does John have standing to appeal from the county court’s appointment of a permanent conservator? Third, if John does have standing, does Genevieve’s death abate his appeal? And fourth, does Genevieve’s death abate the cause of action and require this court to vacate the county court’s orders appointing a conservator?

We reach the following conclusions: • Genevieve’s attorney has no standing to represent her in this court after her death. • Under the Nebraska Probate Code, John had standing to appeal from the county court’s appointment of a conservator because he objected to the proceeding and asked for an evidentiary hearing. But his standing on appeal is limited to whether Genevieve was in need of a conservator. • Genevieve’s death has abated John’s appeal because her competency and need for a conservator are moot issues. • Genevieve’s death does not require us to remand the case with directions to the county court to vacate its order. We conclude that an abatement of an appeal in a conservatorship proceeding does not affect the validity of the final judgment or order from which a party or statutorily authorized person has appealed.

As to Genevieve’s attorney

even if a legal right is not abated by a party’s death, Nebraska’s abatement laws would require a suspension of an action or proceeding until an appropriate representative is substituted by court order through one of the statutory procedures. An attorney’s unauthorized actions on the part of a deceased client are a nullity.  So, unless a deceased client’s legal representative or the client’s contractual agreement authorizes the attorney to take or continue an action for the client, an attorney cannot take any further valid action in the matter.

We reach the following conclusions: • Genevieve’s attorney has no standing to represent her in this court after her death. • Under the Nebraska Probate Code, John had standing to appeal from the county court’s appointment of a conservator because he objected to the proceeding and asked for an evidentiary hearing. But his standing on appeal is limited to whether Genevieve was in need of a conservator. • Genevieve’s death has abated John’s appeal because her competency and need for a conservator are moot issues. • Genevieve’s death does not require us to remand the case with directions to the county court to vacate its order. We conclude that an abatement of an appeal in a conservatorship proceeding does not affect the validity of the final judgment or order from which a party or statutorily authorized person has appealed.

 And

although the parties here have failed to show that this appeal is not moot, we recognize that conservatorship proceedings for elderly persons are frequently prompted by the elderly person’s land or financial transactions that threaten the person’s well-being or affect his or her heirs or family members who have contributed to the assets.  As stated, dismissing an appeal as moot because of the protected person’s death pending appeal would not render the conservatorship order conclusive in another action. But the interests of judicial economy would often be better served by deciding an appeal from a final adjudication of incompetency if the parties showed that the issue was not moot. So, we hold that a protected person’s death pending an appeal from a conservatorship proceeding does not abate the cause of action or affect the underlying orders appointing a conservator.

But because Genevieve’s competency is a moot issue, her death extinguishes this appeal.

There has been an issue recently with linking to Nebraska opinions. The case is Conservatorship of Franke and can be found here. (Mike Frisch)