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In re Guardianship and Conservatorship of Fagan

Court of Appeals of Iowa

November 8, 2017

IN RE THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF ROBERT KENNETH FAGAN, Ward ROBERT KENNETH FAGAN, Appellant.

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

         A ward appeals from an order appointing a guardian and conservator pursuant to Iowa Code chapter 633 (2017).

          Hope Wood, Des Moines, for appellant.

          Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

          MCDONALD, Judge.

         Robert Kenneth Fagan is a seventy-one-year-old veteran challenging the district court's order to appoint him a permanent guardian and conservator. On appeal, Fagan does not challenge the decision to appoint a guardian or conservator, generally. Instead, he contends a limited guardianship or conservatorship would be more appropriate. See Iowa Code § 633.551(3) (2017) ("In determining whether a guardianship or conservatorship is to be established, modified, or terminated, the district court shall consider if a limited guardianship or conservatorship pursuant to section 633.635 or 633.637 is appropriate. In making the determination, the court shall make findings of fact to support the powers conferred on the guardian or conservator."). We do not reach the merits of Fagan's argument, however, because we conclude remand and rehearing is necessary due to Fagan not receiving representation during the course of this proceeding.

         In guardianship and conservatorship proceedings, "the proposed ward is entitled to representation." Iowa Code §§ 633.561 .575. "Upon the filing of the petition, the court shall appoint an attorney to represent the proposed ward, set a hearing on the petition, and provide for notice of the appointment of counsel and the date for hearing." Iowa Code §§ 633.561(1)(a), .575(1)(a). The Code provides an appointed attorney shall do the following:

a. Ensure that the proposed ward has been properly advised of the nature and purpose of the proceeding.
b. Ensure that the proposed ward has been properly advised of the ward's rights in a guardianship proceeding.
c. Personally interview the proposed ward.
d. File a written report stating whether there is a return on file showing that proper service on the proposed ward has been made and also stating that specific compliance with paragraphs "a" through "c" has been made or stating the inability to comply by reason of the proposed ward's condition.
e .Represent the proposed ward.
f. Ensure that the guardianship procedures conform to the statutory and due process ...

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