                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-2108
                            Filed October 10, 2018


IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF
LORI FEISTNER,
      Ward-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Peter A. Keller, Judge.



      Lori Feistner appeals from an order establishing an involuntary

guardianship and conservatorship.       REVERSED AND REMANDED WITH

INSTRUCTIONS.




      Daniel M. Northfield, Urbandale, for appellant.

      Kenneth Michael Steffen, Moline, pro se guardian/conservator.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       This case arises out of the appointment of a guardian and conservator for

Lori Feistner. On appeal, Feistner contends the district court erred in appointing

her a guardian and conservator.

       The petitioner in this case is Lori’s brother, Kenneth (Mike) Steffen. Steffen

filed this petition for guardianship and conservatorship because of his concern for

his sister’s well-being. At the time of trial, Feistner was fifty-six years old. She was

married to her husband of twenty-six years, Roger Feistner. However, Roger was

in the process of seeking a divorce due to Feistner’s erratic and aggressive

behavior. Roger had communicated his intent to seek a divorce to Feistner and to

Steffen. Steffen testified he sought the guardianship and conservatorship primarily

to help Feistner transition during the period of divorce and help her with her

financial situation.

       Feistner’s erratic and aggressive behavior is a symptom of her mental-

health condition. Approximately fifteen years prior to trial, Feistner begin to display

symptoms of mental illness. Her symptoms increased over time, including mania

that would keep her up at nights and result in aggressive or confrontational

behavior toward others. Eventually, Feistner was diagnosed with bipolar, type I,

disorder. She was prescribed medication for her condition, but she frequently

failed to take her prescribed medication because of the way it made her feel and

its adverse side effects, including weight gain. In the decade prior to trial, Feistner

had been civilly committed on six occasions. The duration of her commitments

ranged from several days to several weeks.
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         Our review of this case is for the correction of legal error. See Iowa Code

§ 633.555 (2017) (providing actions shall be triable at law); In re Conservatorship

of Leonard, 563 N.W.2d 193, 195 (Iowa 1997) (stating conservatorship actions are

reviewed for errors at law); In re Guardianship of S.K.M., No. 16-1537, 2017 WL

5185427, at *3 (Iowa Ct. App. Nov. 8, 2017) (concluding guardianship proceedings

are reviewed for errors at law). The district court’s findings are binding on us if

supported by substantial evidence. See Leonard, 563 N.W.2d at 195. Evidence

is substantial if a reasonable person “would accept it as adequate to reach the

same findings.” In re Conservatorship of Deremiah, 477 N.W.2d 691, 693 (Iowa

Ct. App. 1991). We note the district court in this case made no specific findings of

fact on any of the issues. Instead, the district court stated it reviewed the evidence

and found “by clear and convincing evidence that the allegations of the said

Petition are true and material and have been fully sustained by the evidence

offered.”

         The petitioner has the burden of proving the guardianship and/or

conservatorship is necessary and must do so by clear and convincing evidence.

See Iowa Code § 633.551(1), (2). “Clear and convincing evidence is more than a

preponderance of the evidence and less than evidence beyond a reasonable

doubt.” In re L.G., 532 N.W.2d 478, 481 (Iowa Ct. App. 1995). “It is the highest

evidentiary burden in civil cases.” In re M.S., 889 N.W.2d 675, 679 (Iowa Ct. App.

2016).      “It means there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.” Id. Because of

the ward’s significant interest in managing her own affairs, we cannot merely

rubber stamp what has come before; it is our task as a court of review to ensure
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the petitioner came forth with the quantum and quality of evidence necessary to

prove his case. Cf. In re Guardianship of Hedin, 528 N.W.2d 567, 573 (Iowa 1995)

(“Recently, several courts have agreed with commentators that a guardianship

‘involves significant loss of liberty similar to that present in an involuntary civil

commitment for treatment of mental illness.’” (quoting In re Guardianship of Reyes,

731 P.2d 130,131 (Ariz. Ct. App. 1986)).

       We first address the question of whether the petitioner proved the grounds

necessary to establish an involuntary guardianship. The district court may

establish an involuntary guardianship for an adult “whose decision-making

capacity is so impaired that the person is unable to care for the person’s 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.”

Iowa Code § 633.552(2)(a); accord Hedin, 526 N.W.2d at 581. This requires

evidence

       showing that the ward or proposed ward is unable to think or act for
       himself or herself as to matters concerning the ward’s personal
       health, safety, and general welfare. In addition, the district court’s
       findings of fact based upon this evidence should support the powers
       conferred on the guardian. These powers should be articulated as
       clearly as each case permits.

Id. at 579 (altered for readability).

       Steffen failed to prove by clear and convincing evidence a guardianship is

necessary. Feistner suffers from bipolar disorder. Her disorder causes her to be

manic and to be aggressive and confrontational with others. However, there is no

evidence her capacity to make decisions is so impaired that she poses a risk of

harm to herself. See Iowa Code § 633.552(2)(a); Hedin, 526 N.W.2d at 581.
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Indeed, the record is to the contrary. Feistner testified she could provide for herself

and live on her own. She has a full-time job in a call center assisting in-bound

callers. She has a car and a driver’s license. She does not have any thoughts of

suicidal ideation or self-harm. Roger testified Feistner could live alone: “I think

she could live alone. I think she could function on her own.” Steffen testified

Feistner can perform the five major activities of daily living—bathing, dressing,

transferring (movement and mobility), toileting, and eating. He testified, “She could

function on her own.” He testified Feistner was smart, can and should be able to

vote on her own, and can and should make a decision to remarry. In sum, there

is no evidence establishing Feistner’s decision-making capacity is so impaired that

she presents a risk of physical harm to herself.            The establishment of the

guardianship was in error. See In re Guardianship and Conservatorship of Teeter,

537 N.W.2d 808, 810 (Iowa Ct. App. 1995) (“The liberty interests as well as the

stigma in being defined as an incapacitated person require before there be a

determination of whether an adult can make responsible decisions with regard to

his or her safety or property, there must first be a finding his or her decision-making

process is so impaired he or she is not able to care for his or her own personal

safety and is not able to provide necessities of life.”).

       We next address the establishment of the involuntary conservatorship. The

district court may establish an involuntary conservatorship only upon clear and

convincing evidence that 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.”              See Iowa Code

§ 633.566(2)(a).
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       As with the guardianship, Steffen failed to prove by clear and convincing

evidence the need for a conservatorship. Steffen testified his primary motivation

for establishing a guardianship or conservatorship was his concern for Feistner’s

ability to manage her finances after the divorce. He noted Roger managed the

couple’s finances during the marriage so Feistner had little experience. Steffen’s

concern is insufficient evidence to establish a guardianship.             See In re

Guardianship of F.W. Jr., No. 11-1574, 2012 WL 5355801, at *7 (Iowa Ct. App.

Oct. 31, 2012) (noting people may handle their finances in different ways without

justifying a conservatorship); Teeter, 537 N.W.2d at 810 (concluding foolish

spending alone is not sufficient to demonstrate incompetency).          There is no

evidence Feistner’s decision-making capacity is so impaired that she cannot

manage her financial affairs. The evidence is actually to the contrary. There is no

evidence of any past financial mismanagement. Cf. In re Guardianship of Evans,

No. 16-2192, 2017 WL 4570438, at *3 (Iowa Ct. App. Oct. 11, 2017) (finding ward’s

inability “to make and carry out important financial decisions regarding her financial

affairs,” as demonstrated by her history of sharing her debit card; ignorance of her

bills and payment procedures; and inability to consistently pay her rent, supported

the establishment of a conservatorship).

       There is no evidence from which one could infer a future inability to manage

her affairs. As noted above, Feistner has a full-time position in a call center

assisting in-bound callers. She has managed her own checking account for four

decades. Her trial testimony made clear she understood her finances. She

explained how she intended to use her property settlement in the impending

divorce to purchase a condominium for herself because she did not want to pay
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rent. She appeared knowledgeable regarding the expenses associated with daily

living, including food, transportation, and tax expenses and how she would need

to work to pay those items.

      In sum, there is not clear and convincing evidence nor a factual finding that

the proposed ward had impaired decision-making capacity and the need for an

involuntary guardianship or conservatorship. The district court erred in concluding

otherwise. We remand this matter for entry of an order dismissing the petition.

See, e.g., Leonard, 563 N.W.2d at 196 (concluding “there was neither evidence

nor a court finding that the [ward’s] decision-making process to handle his own

financial affairs was impaired according to the Hedin standard” and reversing and

remanding with instructions to dismiss the petition); Teeter, 537 N.W.2d at 810

(reversing and dismissing).

      REVERSED AND REMANDED WITH INSTRUCTIONS.
