In the Matter of the Guardianship and Conservatorship of Denise Louise Evans, Ward. Denise Louise Evans, Ward-Appellant.

IN THE COURT OF APPEALS OF IOWA

No. 16-2192
Filed October 11, 2017

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF
DENISE LOUISE EVANS, Ward.

DENISE LOUISE EVANS,
Ward-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Craig E. Block,

Associate Probate Judge.

Ward appeals from an order appointing a guardian and conservator

pursuant to Iowa Code chapter 633 (2016). AFFIRMED.

Amanda L. Green of Nading Law Firm, Ankeny, for appellant.

Thomas J. Miller, Attorney General, and Gretchen W. Kraemer, Assistant

Attorney General, for appellee State.

Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

Denise Evans appeals from an order appointing a temporary guardian and

conservator pursuant to Iowa Code chapter 633 (2016). Evans makes three

arguments on appeal. She argues an initial emergency order authorizing

services issued pursuant to Iowa Code chapter 235B was inappropriate. She

contends there was insufficient evidence to establish the need for a guardianship

and conservatorship. She argues the district court erred in not giving appropriate

consideration to establishing only a limited guardianship and conservatorship.

I.

Iowa Code 235B.19 allows the Iowa Department of Human Services

(IDHS) to seek an emergency order authorizing protective services for a

dependent adult. In July 2016, IDHS petitioned for such an order for the

protection of Evans. At the time of the petition, Evans was 56 years old and had

been diagnosed with multiple sclerosis. The petition alleged Evans had “poor

insight” regarding how her diagnosis of multiple sclerosis affected her wellbeing.

For example, Evans continued to attempt to walk despite her inability to do so,

frequently fell, and caused herself injury. The petition alleged Evans “allow[ed]

homeless people to live with her” and gave them access to her debit card. The

petition alleged Evans did not keep track of her money and was unable to pay

rent as a result. The petition further alleged Evans had gone to the hospital on

July 13 to treat a stroke and would put herself at risk of harm by going home.

IDHS requested the district court to order Evans to remain hospitalized until her

treating medical providers discharged her, order her to be placed as determined
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by the department following her discharge, and order all medical decisions to be

made by her treating medical providers.

The district court granted the petition for emergency relief. In addition to

the requested relief, the order allowed IDHS to

examine all medical and all financial records, including but not
limited to banking and investment records, of the dependent adult
(including medical records involving HIV status, substance abuse
and mental health treatment) and to exchange information with
treating medical professionals, staff at the placement where the
dependent adult [was] residing, staff at any facilities where the
dependent adult may be placed, family members of the dependent
adult, and any potential guardians and/or conservators for the
dependent adult.

The order also allowed the department of human services “to enter the

dependent adult’s home to obtain any personal property needed by the

dependent adult and/or secure the home” and “obtain and release information

regarding the dependent adult . . . to the Social Security Administration for the

purpose of obtaining funding for the dependent adult.”

The district court’s order, by its terms, was to expire in seventy-two hours.

See Iowa Code § 235B.19(6). From that point until October 2016, the district

court issued a series of emergency orders requiring Evans to remain in a care

facility under the supervision of IDHS.

In October 2016, IDHS filed a petition for involuntary appointment of

guardian and conservator pursuant to Iowa Code chapter 633. Evans resisted

the petition. Following an evidentiary hearing, the district court issued an order

naming Debra Williams, Evans’s sister, her temporary guardian and conservator.

Evans timely filed this appeal.
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II.

Before turning to the merits of this appeal, we first address a jurisdictional

issue. A party may appeal as a matter of right “[a]ll final orders and judgments of

the district court.” Iowa R. App. P. 6.103(1). A party may seek interlocutory

review of non-final orders, and interlocutory review may be granted if “such ruling

or order involves substantial rights and will materially affect the final decision and

that a determination of its correctness before trial on the merits will better serve

the interests of justice.” Iowa R. App. P. 6.104(2). In the event the party seeks

the wrong form of review, this court may treat “the papers upon which the action

was initiated as seeking the proper form of review.” Iowa R. App. P. 6.108.

The State contends this court lacks jurisdiction over this appeal because

the order appointing a temporary guardian and conservator is not a final order,

because Evans did not seek interlocutory review, and because interlocutory

review would be improper. “In order to determine the question of the finality of

the order, we must examine its scope and intent and the motion itself.” Swets

Motor Sales, Inc. v. Pruisner, 236 N.W.2d 299, 302 (Iowa 1975).

When we examine the petition and the order, we conclude the order at

issue was a final order. The order was an “order of appointment of temporary

guardian and conservator.” While it is true the order set a future hearing to

appoint a permanent guardian and conservator, we do not think that dispositive

of the issue. The order at issue determined with finality the need for a guardian

and conservator. The future hearing was merely to determine with finality the

identity of the person serving as the guardian and conservator. This

understanding was confirmed with counsel at the hearing on the guardianship.
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There is a difference between a temporary order appointing a guardian and

conservator and an order appointing a temporary guardian and conservator. Our

case is the latter case. See Crowe v. De Soto Consol. Sch. Dist., 66 N.W.2d

859, 860 (Iowa 1954) (“A final judgment or decision is one that finally adjudicates

the rights of the parties, and it must put it beyond the power of the court which

made it to place the parties in their original positions.”). Because the order at

issue is a final order appealable as a matter of right, we have jurisdiction over the

appeal.

III.

An action for the involuntary appointment of a guardian or conservator is

at law. Iowa Code § 633.33. Our review is therefore for correction of errors at

law. See In re Guardianship of M.D., 797 N.W.2d 121, 126–27 (Iowa Ct. App.

2011) (discussing conflicting precedent); In re Guardianship of C.R., No. 14-

1039, 2015 WL 576385, at *1 (Iowa Ct. App. Feb. 11, 2015) (stating “that the

appropriate standard of review for cases involving the establishment of a

guardianship is for errors at law, not de novo”). We will affirm the judgment of

the district court if supported by substantial evidence. See In re Guardianship &

Conservatorship of Wemark, 525 N.W.2d 7, 9 (Iowa Ct. App. 1994).

A.

Evans contends the emergency order issued pursuant to Iowa Code

section 235B.19 was improperly granted. She further argues the subsequent

emergency orders were improperly granted. The State argues the challenge is

untimely. We agree. Notice of appeal must be filed within thirty days of the final

order or judgment. See Iowa R. App. P. 6.101. Timely notice of appeal is
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jurisdictional. See Milks v. Iowa Oto-Head & Neck Specialists, P.C., 519 N.W.2d

801, 803 (Iowa 1994). Here, the emergency order was issued in July 2016.

Notice of appeal was filed in December 2016. The petition to appoint a

temporary conservator and guardian was and a separate action filed pursuant to

Iowa Code sections 633.551 and 633.566. The challenge to the emergency

order issued pursuant to section 235.B.19 is untimely.

Even if this court had jurisdiction to review the emergency orders, we

conclude Evans is not entitled to any relief on this claim. On December 1, 2016,

the district court issued an order cancelling the emergency protective orders.

Because Evans is no longer subject to the challenged 235B orders, the issue is

moot. See In re M.T., 625 N.W.2d at 702, 705 (Iowa 2001) (holding appeal moot

where no judgment will have no practical legal effect upon the existing

controversy). We decline to exercise our discretion to review the issue. See id.

(providing the court had the discretion to address moot issue under certain

circumstances).

B.

Evans challenges the sufficiency of the evidence supporting the need for a

guardianship and conservatorship. We will affirm the order of the district court if

supported by substantial evidence. See Guardianship of Wemark, 525 N.W.2d

at 9.

The proposed ward in a guardianship proceeding is presumed to be

mentally sound. See Neidermyer v. Neidermyer, 22 N.W.2d 346, 350 (Iowa

1946). The person seeking to establish a guardianship must show impairment of

a proposed ward’s decision-making capacity by clear and convincing evidence.
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See Iowa Code §§ 633.551, .552, .556. To meet this burden, the proponent of

the guardianship and conservatorship must show:

In the case of a conservatorship the impairment must be such that
the proposed ward “is unable to make, communicate, or carry out
important decisions concerning the person's financial affairs.” In
the case of a guardianship the impairment must be such that the
proposed ward is unable to care for his “personal safety or to attend
to or provide for necessities for the person such as food, shelter,
clothing, or medical care, without which physical injury or illness
might occur.”

In re Guardianship & Conservatorship of Hunter, No. 02-1225, 2003 WL

22805330, at *1 (Iowa Ct. App. Nov. 26, 2003). Mere memory loss is not enough

to establish impaired decision-making capacity. See Richardson v. Richardson,

250 N.W. 897, 898–99 (Iowa 1933). Unwise spending is not enough to establish

the need for a conservatorship. See In re Guardianship & Conservatorship of

Teeter, 537 N.W.2d 808, 810 (Iowa Ct. App. 1995).

There is substantial evidence Evans is unable to make and carry out

important decisions regarding her financial affairs. The evidence showed more

than Evans spent money unwisely; it showed an inability to understand her

financial affairs. Evans’s IDHS worker testified Evans was known to give her

debit card to other people and was often missing funds as a result. At the

guardianship hearing it was clear Evans was unsure about her financial

obligations including the bills she was required to pay and how to pay them. She

was unable to keep an active cellular phone due to difficulties knowing what she

owed on the account and paying the same. Evans’s apartment manager had to

work with her and her care professionals to avoid issuing an eviction notice due
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to nonpayment of rent. Evans lacks the decision-making capacity to make

important financial decisions.

The record also showed Evans is unable to care for her safety and provide

for the necessities of life. She repeatedly disobeyed medical advice by

attempting to walk and then falling and causing herself injury. Besides injuries

from the falls themselves, she has received second-degree burns from carrying

hot coffee and falling. Evans testified at the hearing that she would continue to

act against medical advice and ignore the decisions of her doctors in regards to

her multiple sclerosis. A report from her primary care physician and testimony

from her IDHS worker further explained Evans is unable to care for her ulcers,

forgets to take her medication, is unable to walk unassisted, and had to call 911

due to falls at least sixteen times during a six-month-period in 2016. Testimony

established she receives twenty-four-hour care at a care facility and that this was

meeting her medical needs. Evans offered no expert witness in support of her

view that she does not require twenty-four-hour assistance.

In light of these facts and given our deferential standard of review we

conclude the district court did not err in appointing a guardian and conservator for

Evans.

C.

Evans argues the district court did not consider whether a limited

guardianship or conservatorship was appropriate in her case. Pursuant to

chapter 633, the district court must consider the appropriateness of a limited

guardianship or conservatorship. See Iowa Code § 633.551(3). Again, our
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review is for substantial evidence. See Guardianship of Wemark, 525 N.W.2d at

9.

The district court made the following finding, “This court has considered

the appropriateness of a limited Guardianship and Conservatorship and the

effect of third-party assistance for the proposed Ward and determined that

neither will sufficiently address her needs.” There is substantial evidence to

support this conclusion. This case centers on whether or not Evans should be

required to live in a care facility as advised by her doctors. Testimony

established Evans requires extensive care and cannot walk or transfer to her

wheelchair unassisted. Evans herself testified she would not heed medical

advice she did not agree with and stated she would continue to try to walk. A

limited guardianship would not address these concerns. Substantial evidence

also supports a full conservatorship. Testimony shows Evans has difficulty

managing her finances, frequently loses her debit card, gives her debit card to

random people, and is unaware of many of her financial obligations.

The district court concluded a limited guardianship and conservatorship

was inappropriate in this case. There is substantial evidence to support this

conclusion.

III.

In light of the above considerations, we affirm the district court’s order

appointing a temporary guardian and conservator.

AFFIRMED.