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In re guardianship and conservatorship of Hanken

Court of Appeals of Iowa

February 20, 2019

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF DIANA HANKEN, DIANA HANKEN, Ward-Appellant.

          Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.

         Diana Hanken challenges the denial of her request to execute a new will.

          Christina I. Thompson of Phil Watson, P.C., Des Moines, for appellant.

          James W. Thornton of Thornton & Coy, PLLC, Ankeny, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.

          VAITHESWARAN, JUDGE.

         The 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 chooses."

         On the 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.

         Following 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."

         We 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 capacity."

         But absence of "decision-making capacity" does not necessarily equate with absence of "testamentary capacity." See id. § 633.637.[1] 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 novo.").

         A key 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 nature."

         This 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).

         In 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 ...


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