In the Matter of the Guardianship of Jeanette Kliege in the Matter of the Conservatorship of Jeanette Kliege.

IN THE COURT OF APPEALS OF IOWA

No. 15-0851
Filed April 27, 2016

IN THE MATTER OF THE
GUARDIANSHIP OF

JEANETTE KLIEGE

IN THE MATTER OF THE
CONSERVATORSHIP OF

JEANETTE KLIEGE.
________________________________________________________________

Appeal from the Iowa District Court for Butler County, Rustin T.

Davenport, Judge.

Juliana Burd appeals the orders creating a conservatorship for her mother,

Jeanette Kliege, and appointing non-relatives to serve as Kliege’s guardian and

conservator. AFFIRMED.

Barry S. Kaplan of Kaplan & Freese, LLP, Marshalltown, for appellant.

Patrick G. Vickers of Vickers Law Office, Greene, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

In this consolidated appeal, we review two orders concerning Jeanette

Kliege and her substantial estate. Kliege’s daughter, Juliana Burd, appeals the

order appointing a non-relative to serve as Kliege’s guardian, arguing that it is in

Kliege’s best interest that Burd serve as her guardian. She also appeals the

order creating a conservatorship for Kliege and appointing a non-relative to serve

as conservator. Burd argues the statutory requirements for appointment of a

conservator have not been met, but, in the alternative, she requests she be

appointed conservator. Because the appointments of the guardian and the

conservator made by the district court serve Kliege’s best interests, we affirm.

I. Background Facts and Proceedings.

Jeanette Kliege is ninety years of age, and she owns a residence and

more than two-hundred acres of farmland near Parkersburg. She has two

daughters: Burd, who lives in Blue Springs, Missouri, and Janola Taylor, who

lives in West Des Moines. After her husband died in 2009, Kliege executed both

general and medical powers of attorney, empowering her daughters to manage

her affairs and finances.

Ted Junker, who lives in New Hartford, met Kliege over twenty years ago

at church. He began leasing farmland from the Klieges in 2006 and occasionally

helped the Klieges around the farm. After Kliege’s husband passed away,

Junker began checking in on Kliege every other week or so, and he continued to

plow the snow from her driveway. Junker noticed a change in Kliege in

December 2013; he was concerned she was not eating every day and seemed

confused, so he began checking on her more frequently.
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Dorothea Kampman also met Kliege through her church and has known

her for approximately thirty-five years. Kampman, a retired nurse, also checked

on Kliege regularly following her husband’s passing. On a Saturday in late

December 2013, Kampman found Kliege to be “somewhat confused” and her

medications “in disarray.” Kampman spent an hour and a half organizing the

medications and provided Kliege with detailed instructions on how to take them.

She then telephoned Burd and Taylor to notify them of her concerns. When

Kampman visited Kliege the following Monday, two days later, she found Kliege

had “completely rearranged” her medications and was still not taking them

correctly. Kampman was concerned that Kliege was not eating frequently

enough. Kampman again contacted Burd and Taylor to notify them of her

concerns about Kliege’s safety and well-being.

Junker went to Kliege’s home that Wednesday, Christmas Day, to check

on Kliege. Junker knocked and called her phone, but Kliege did not answer.

Concerned, he called Burd and Taylor, but neither would grant Junker permission

to enter the house without their presence. Eventually, Taylor agreed to make the

trip from West Des Moines to check on Kliege. When Taylor arrived three hours

later, she and Junker entered the home and found Kliege lying on her bedroom

floor with a fractured hip, confused as to what had happened. She was

transported to the hospital where she was diagnosed with dehydration, dementia,

and depression.

When Kliege was discharged from the hospital, Taylor placed her in a

nursing home in Parkersburg, unbeknownst to Burd. In May 2014, Burd,

unhappy with Taylor’s decision, attempted to remove Kliege from the nursing
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home so that she could resume living on the farm. Taylor learned of Burd’s plans

and successfully blocked the attempt.

Without Taylor’s knowledge, Burd transported Kliege to an attorney’s

office where a petition for voluntary appointment of a guardian was prepared,

seeking Burd’s appointment as Kliege’s guardian. On May 30, 2014, after finding

Burd was “fully qualified” and “the appropriate person to serve,” the district court

appointed Burd as guardian. Later, in September 2014, Burd gave the nursing

home notice of her intent to remove Kliege, and the nursing home in turn

informed Taylor. Taylor also learned of the existence of the voluntary

guardianship.

Taylor filed an application to dissolve the guardianship, alleging Kliege’s

signature was obtained by Burd when Kliege was incompetent. The court

granted Taylor’s request for a temporary injunction to keep Burd from removing

Kliege from the nursing home, appointed a guardian ad litem for Kliege, revoked

the letters of appointment issued to Burd, and appointed Junker temporary

guardian. The guardian ad litem filed a petition for involuntary appointment of a

conservator, proposing Lincoln Savings Bank be appointed.

A hearing concerning both the guardianship and the conservatorship was

held on April 1 and 2, 2015. The guardian ad litem asserted Junker should serve

as Kliege’s guardian and Lincoln Savings Bank as her conservator.

In its April 17, 2015 order, the district court found Kliege to be

incompetent, as defined by the Iowa Code, and it concluded a guardianship and

conservatorship was necessary. The court further found “a great deal of

antipathy” between Burd and Taylor, which prevented the sisters from working
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together or communicating effectively. Because appointment of one of the

daughters as guardian would cause “strife and battles to ensue,” the court found

Junker should serve as Kliege’s guardian. The court also determined that a

conservatorship was warranted and appointed Lincoln Savings Bank, “a neutral,

professional entity,” because of the “hostility” between the two daughters.

Burd appeals.

II. Scope and Standard of Review.

Actions for the involuntary appointment of guardians and conservators are

tried at law. See Iowa Code § 633.33 (2013). Therefore, our review is for the

correction of errors at law. See Iowa R. App. P. 6.907; In re Conservatorship of

Deremiah, 477 N.W.2d 691, 692 (Iowa Ct. App. 1991). Findings of fact are

binding on us if supported by substantial evidence. Iowa R. App. P. 6.904(3)(a).

Substantial evidence exists if the finding may be reasonably inferred from the

evidence. Deremiah, 477 N.W.2d at 693.

III. Appointment of a Guardian.

Burd does not contest the district court’s finding that Kliege meets the

requirements for appointment of a guardian. See Iowa Code §§ 633.3(23)(a)

(defining “incompetent”), 633.552(2) (setting forth the requirements for

appointment of a guardian). She only challenges the appointment of Junker as

Kliege’s guardian, arguing it is in Kliege’s best interest that she be appointed

guardian.

Once the criteria for appointment of a guardian has been proved, the

district court is afforded discretion in selecting a guardian to appoint. See In re

Guardianship & Conservatorship of Reed, 468 N.W.2d 819, 822-23 (Iowa 1991)
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(noting that a jury may decide whether the statutory ground for appointment of a

guardian has been proved and, if “answered affirmatively, the decisional act of

appointing a guardian is then made by the court”); In re Guardianship

& Conservatorship of Schmidt, 401 N.W.2d 37, 39 (Iowa 1987) (“[T]he trial court

is authorized to exercise its own judgment on who might best serve in the

fiduciary capacity.”). Appellate courts “will not interfere in the selection of a

guardian made by a trial court unless it is shown that there has been a clear

abuse of discretion in making the appointment.” Arent v. Arent, 32 N.W.2d 660,

661 (Iowa 1948). If two or more statutorily-qualified and suitable persons are

seeking guardianship of an adult ward, the district court must exercise its

discretion to “determine which proposed guardian’s appointment would better

serve the best interests and well-being of the ward.” In re Guardianship of

M.E.B., No. 06-0583, 2007 WL 1345895, at *5 (Iowa Ct. App. May 9, 2007). To

be statutorily qualified to serve as a guardian, a person must be an Iowa resident

of full age and competent. Iowa Code § 633.63(1). In order for a nonresident to

be appointed guardian, they must be competent and serve as co-guardian with a

resident guardian. See id. § 663.64(a). A nonresident may serve as the sole

guardian only if “good cause” is shown. See id. Burd has lived in Missouri since

1976 and seeks to serve alone as guardian. Therefore, she must show good

cause as to why she should be appointed guardian. See In re Estate of Oelberg,

414 N.W.2d 672, 675 (Iowa Ct. App. 1987).

There is no question both Junker and Burd meet the competency

requirement to serve as Kliege’s guardian. Burd does not contest Junker’s

qualifications or suitability to be Kliege’s guardian. The district court’s order does
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not address whether Burd has shown good cause to be appointed alone to serve

as Kliege’s guardian. Assuming Burd has shown good cause, the district court

was confronted with a decision between two competent guardians. It then had to

decide who to appoint based on Kliege’s best interests and well-being. In

making this determination, the court considered the parties’ relationships with

and their history of caring for Kliege. It considered Burd’s contentious

relationship with Taylor and found that selecting one of Kliege’s daughters to

serve as guardian over the other would cause more strife, which was contrary to

Kliege’s best interests. Because Junker was able to remain neutral and make

determinations based on Kliege’s best interests, he was selected as Kliege’s

guardian.

Burd concedes there is no evidence Junker would act contrary to Kliege’s

best interests should he continue as her permanent guardian. However, she

argues that she is more likely to serve Kliege’s best interests because she is

Kliege’s daughter. Familial relationship is not, alone, a determinative factor in

selecting a guardian. See Schmidt, 401 N.W.2d at 39; see M.E.B., 2007 WL

1345895, at *5 (“There is no express statutory preference for the appointment of

a guardian for an adult ward.”). As the Schmidt court noted: “From time to time

wards need more protection from kin than from strangers.” 401 N.W.2d at 39.

Although closeness of consanguinity is considered, it is only one piece to be

considered in the best-interest analysis. See M.E.B., 2007 WL 1345895, at *5.

Burd also cites the fact that she was named Kliege’s guardian in the

voluntary guardianship action and requests it be considered as evidence of

Kliege’s preference for her guardian. She further claims there is no evidence in
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the record that Kliege would prefer Junker to be her guardian. Kliege’s

preference of guardian is not determinative, however. See Schmidt, 401 N.W.2d

at 39 (noting the district court “is not bound by the views of the family, or even the

preferences of the ward” in selecting a guardian).

Burd complains that Junker has “no experience and no real desire” to

provide for Kliege’s necessities. The evidence as to Junker’s past actions does

not reflect this view. Although he is not a member of Kliege’s family, Junker lived

in the same area as Kliege for over twenty years and has maintained a close

relationship with Kliege since 2006 by renting her land, assisting around the farm,

and checking on Kliege’s well-being. Junker noticed when Kliege’s health

declined in December 2013, and in response, he increased the frequency of his

visits. It was Junker’s visit to Kliege on Christmas Day and his insistence on

investigating further in the face of her daughters’ resistance that led to the

discovery of Kliege on her bedroom floor, her hip broken, dehydrated, and

confused—but still alive. The record further shows that Junker visited Kliege at

the nursing home on several occasions before being appointed as her temporary

guardian, when he began visiting on a near-weekly basis. When Junker noticed

that the nursing-home staff was not providing Kliege with her hearing aids daily,

he spoke to staff and the problem was corrected.

Junker has demonstrated willingness to aid in Kliege’s care in the future

as well. He testified that he’s grown to care about Kliege. Although Junker

allows Kliege’s daughters to attend to her personal needs, he testified he would

be willing to do that as well if necessary. Importantly, Junker is able to get along

with both of Kliege’s daughters. Although the antagonistic nature of their
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relationship puts Junker “in a difficult position between the two of them,” Junker

testified his concern is for Kliege.

The record does not support a finding that Burd can better attend to

Kliege’s best interests. Although she made the trip to Iowa every thirty-five and

forty-five days to take Kliege grocery shopping, Burd lives in Missouri and has

since 1976. Despite receiving two calls from Kampman with concerns about

Kliege’s well-being in the days leading up to Christmas, Burd refused to consent

to Junker’s unaccompanied entry into Kliege’s home on Christmas Day to check

on her well-being. As a result, Kliege was denied medical care for three

additional hours until Taylor arrived to enter the home with Junker. Burd

attempted to remove Kliege from the nursing home and return her to her

residence without consulting Kliege’s doctor. Although Burd testified it never

occurred to her to consult the doctor before implementing the change, she

indicated she did not feel consulting with the doctor was “advisable.” Kliege’s

doctor testified the moving process can be traumatizing to elderly people with

dementia. Although evidence shows that moving Kliege from the nursing home

would not be in her best interests, Burd still evinced her intent to do so if she is

made guardian. Burd has shown an unwillingness or disinterest in working with

Kliege’s doctor and the nursing-home staff to assure Kliege receives the best

care possible as is evidenced by her unwillingness to participate in the nursing

home’s monthly care conferences or to engage in conference calls or meetings

with Kliege’s doctor. She has evinced a poor attitude toward the nursing-home

staff in general by being difficult and rude in her interactions.
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Also of concern is the ongoing conflict between Burd and Taylor and the

impact it has on Kliege. Burd did not inform Taylor of her plans to move Kliege

from the nursing home or of the voluntary guardianship. She justified her failure

to inform Taylor of the decision to move Kliege by arguing Taylor failed to inform

her she was placing Kliege in the nursing home initially: “Because she did it to

me, so then I could do it to her.” While Burd claims the conflict stems from the

fact they have joint powers of attorney, there is no indication the situation would

improve if Burd had the power to make decisions for Kliege unilaterally.

The district court properly exercised its discretion in appointing Junker to

serve as Kliege’s guardian, and we affirm that order.

IV. Appointment of a Conservator.

Burd also appeals the conservatorship order, challenging the sufficiency of

the evidence to meet the statutory requirements for establishing a

conservatorship. She also challenges the appointment of Lincoln Savings Bank

to serve as Kliege’s conservator. In the event this court agrees the statutory

grounds for a conservatorship have been established, Burd argues that she

should be appointed conservator.

In order to meet the statutory requirements for appointment of a

conservator, there must be evidence the proposed ward’s “decision-making

capacity is so impaired that the person is unable to make, communicate, or carry

out important decisions concerning the person’s financial affairs.” Iowa Code

§ 633.566(2)(a). The petitioner must prove by clear and convincing evidence the

need to appoint a conservator. See id. §§ 633.551(1)-(2), 633.556(1). Although

Burd agrees Kliege’s decision-making capacity is impaired such that she is
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unable to care for her personal safety or to attend to necessities like food,

shelter, clothing, or medical care without risk of physical injury or illness, see id.

§ 633.552(2)(a), she claims Kliege is able to make, communicate, and carry out

important decisions relating to her financial affairs.

The same evidence that shows Kliege is in need of a guardian supports

appointment of a conservator. Kliege shows signs of at least moderate to severe

dementia. Her doctor opined that based on her background, experience,

training, and treatment of Kliege, that Kliege “should not be making [financial]

decisions.” Burd’s own testimony demonstrates Kliege relied on Burd to a great

extent before she was moved to a nursing home. Since that time, her abilities

have further declined.

The question then is who should serve as conservator. Once again, the

district court had discretion in selecting a conservator. See Schmidt, 401 N.W.2d

at 39. Burd argues she is better qualified to serve as Kliege’s conservator based

on her past assistance with Kliege’s financial matters. She notes that she never

charged fees for assisting Kliege, unlike Lincoln Savings Bank.

As with the appointing of a guardian, there is no statutory preference for

selecting a conservator of an adult. See Iowa Code § 633.571 (setting forth

preferences concerning appointment of a conservator for minor children before

concluding that “[s]ubject to these preferences, the court shall appoint as

conservator a qualified and suitable person who is willing to serve in that

capacity”). “The matter of who is to act as [conservator] rests very largely in the

sound discretion of the court making the appointment.” In re Guardianship of

Hruska, 298 N.W. 664, 666 (Iowa 1941) (concerning the selection of a “guardian
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of property,” now known as a conservator). Therefore, we review the court’s

selection of Lincoln Savings Bank as conservator for an abuse of discretion. See

id. (affirming selection of conservator for an incompetent person where no abuse

of discretion was shown).

The district court noted it had “some reservations” about appointing

Lincoln Savings Bank to act as conservator. It noted that although Burd has not

charged a financial fee for handling Kliege’s finances, the investments Burd

made on Kliege’s behalf receive less than a 2% rate of return. The court

determined that the return on these investments, though low, would likely be

sufficient to pay Kliege’s expenses due to Kliege’s “substantial assets.”

However, the court found that any fee charged by Lincoln Savings Bank may be

balanced by the greater rate of return the bank could receive on its investments

of Kliege’s assets. The tipping factor in favor of Lincoln Savings Bank was “the

hostility between the daughters, as reflected in Janola Taylor’s claim of Juliana

Burd mishandling her mother’s money.” Because the conflict between her

daughters is contrary to Kliege’s best interests, the court concluded “a neutral,

professional entity should serve as conservator.” This was a proper exercise of

discretion.

Because there is substantial evidence in the record establishing the

statutory grounds for appointment of a conservator, and because the court

properly exercised its discretion in selecting Lincoln Savings Bank to serve as

conservator, we affirm the conservatorship order.

AFFIRMED.