IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF DIANA HANKEN, DIANA HANKEN, Ward-Appellant.
from the Iowa District Court for Marshall County, John J.
Hanken challenges the denial of her request to execute a new
Christina I. Thompson of Phil Watson, P.C., Des Moines, for
W. Thornton of Thornton & Coy, PLLC, Ankeny, for
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
district court appointed a guardian and conservator for
eighty-six-year-old Diana Hanken after finding that she
"suffered multiple strokes" that
"drastically" worsened her confusion. Several
months later, Hanken petitioned to terminate the guardianship
and conservatorship. In part, she asked the court to afford
her "the right to execute a new [w]ill, if she so
day of trial, Hanken's attorney informed the district
court that an agreement had been reached to continue the
guardianship and conservatorship and replace the current
guardian and conservator. The primary issue left for trial,
she asserted, was whether Hanken possessed the capacity to
execute a new will.
trial, the district court determined Hanken lacked "the
requisite testamentary capacity to make or execute a new will
or codicil." On appeal, Hanken argues, "the
district court incorrectly applied Iowa law in ruling that
[she] does not have competency to execute a new will."
begin with what is conceded. By agreeing a guardianship and
conservatorship should continue, Hanken effectively
acknowledged the standard for termination of the guardianship
and conservatorship was not satisfied. See Iowa Code
§ 633.675 (2017). That standard requires proof the
person's "decisionmaking capacity" is no longer
"impaired." Id. § 633.675(1)(c).
"Decision-making capacity" is tied to a ward's
personal health and safety. See In re Guardianship of
Hedin, 528 N.W.2d 567, 578 (Iowa 1995). Specifically, a
guardianship and conservatorship is warranted if "the
person is unable to care for the person's personal safety
or . . . attend to or provide for necessities for the person
such as food, shelter, clothing, or medical care,"
leaving a possibility of "physical injury or
illness." Iowa Code § 633.552(2)(a). It is
undisputed that Hanken lacked "decision-making
absence of "decision-making capacity" does not
necessarily equate with absence of "testamentary
capacity." See id. §
633.637. In other words, a person who is under a
guardianship and conservatorship may nonetheless possess
testamentary capacity to transfer property. See id.;
Ward v. Sears, 78 N.W.2d 545, 550-51 (Iowa
1956) ("It is settled in this state also that, though a
person be under guardianship, he may yet be found competent
to make a will."); In re Guardianship of
Driesen, No. 08-1311, 2009 WL 1491871, at *3 (Iowa Ct.
App. May 29, 2009) ("[T]he test for a guardianship is
not the same as a test for capacity to amend a trust.").
That said, "the fact of guardianship is presumptive
proof of incompetency to make a will, and the burden is upon
the proponent to overcome such presumption."
Ward, 78 N.W.2d at 550; Olson v.
Olson, 46 N.W.2d 1, 12 (Iowa 1951) ("[T]he fact
that he is under guardianship with respect to his property
under an adjudication that he is incompetent is presumptive
evidence that he cannot dispose of his property now or by
will."). The question, then, is whether Hanken overcame
the presumption of impaired testamentary capacity. Because
the challenge arises in the context of a
guardianship-termination proceeding, our review is de novo.
See Iowa Code section 633.33; Hedin, 528
N.W.2d at 581 ("[A] petition to terminate a guardianship
is triable as a proceeding in equity. Our review then is de
piece of evidence is a psychological evaluation of Hanken. A
professional with a doctorate in psychology reported that
Hanken had "cognitive impairments . . . well outside of
age expected limits and consistent with a progressive
dementia." She diagnosed a "likely Alzheimer's
component" to Hanken's dementia. She concluded:
"The patient's cognitive impairments are such that
she would have difficulty fully appreciating relevant aspects
involved in making informed choices concerning complicated
matters, such as those of a legal, financial, or medical
assessment lent credence to the presumption of testamentary
incapacity. See Brogan v. Lynch, 214 N.W.
514, 515 (Iowa 1927) ("There is evidence, fairly
conclusive in character, that the testatrix, at the time of
the appointment of the guardian, was suffering from senile
dementia and that her mental condition gradually grew
worse."); cf. In re Springer's
Estate, 110 N.W.2d 380, 388 (Iowa 1961) ("The fact
decedent was under guardianship does not in this case raise a
presumption of incompetency and make a case for the jury on
that ground alone as contended by contestants. This was a
voluntary guardianship under [the Iowa Code], and no
presumption is raised."); Olson, 46 N.W.2d at
12 ("[P]laintiff fully carried the burden upon him of
establishing that the guardianship of his property should be
terminated."); In re Willer's Estate, 281
N.W. 155, 156- 57 (Iowa 1938) (rejecting assertion that a
guardianship based on testator's excessive alcohol usage
rendered him incompetent to draft a will).
addition, a physician's assistant testified to
Hanken's progressive dementia, an illness she
characterized as hindering one's ability to perform more
complicated tasks. Although she stated the dementia would not
prevent Hanken from making a rational decision about her
bequests, she acknowledged Hanken got "confused with
questions that require[d] more of a narrative" and never
discussed "the parties or assets ...