IN THE SUPREME COURT OF IOWA

No. 18–0316

Filed June 21, 2019

GEORGE E. STRUVE, Petitioner by substitute petitioners DIANNE 

LAWRENCE, PAUL STRUVE, and RONALD STRUVE,

Appellants,

vs.

PERRY STRUVE and CLAYTON STRUVE,

Appellees.

Appeal from the Iowa District Court for Clinton County, Mark R. 

Lawson, Judge.

Appeal from the denial of a petition alleging elder abuse brought 

pursuant to Iowa Code chapter 235F (2016). AFFIRMED.

T. Randy Current and A. John Frey Jr. of Frey, Haufe & Current, 

P.L.C., Clinton, for appellants.

Brian P. Donnelly of Mayer, Lonergan & Rolfes, Clinton, guardian 

ad litem for appellant George Struve.

Steven E. Balk of Pepping, Balk, Kincaid & Olson, Ltd., Silvis, 

Illinois, for appellee Clayton Struve.

Christopher L. Farwell of Farwell & Bruhn, Clinton, for appellee

Perry Struve.
2

McDONALD, Justice. 

At the heart of this case is an intrafamily dispute regarding 

farmland. Dianne Lawrence, Paul Struve, and Ronald Struve, as 

substitute petitioners for their father George Struve, filed a petition for 

relief from elder abuse pursuant to Iowa Code chapter 235F (2016). In 

their petition, they alleged their brother Perry Struve and his son Clayton 

Struve committed elder abuse against George. Specifically, the substitute 

petitioners contended Perry and Clayton unduly influenced George to 

enter into below-market-rate lease agreements to farm George’s land, to 

gift some of George’s land to Perry and Clayton, and to write a new will to 

reflect the gifted land. The substitute petitioners sought relief for the loss 

associated with those transactions. The district court denied the petition 

with respect to the challenged transactions, concluding chapter 235F was 

a summary proceeding and the substitute petitioners failed to establish 

their father was a “vulnerable elder” subject to “financial exploitation” 

within the meaning of chapter 235F. The substitute petitioners timely filed 

this appeal.

I.

The substitute petitioners first contend the district court erred in 

concluding they failed to prove an entitlement to statutory relief. We 

review the district court’s decision de novo. In re Chapman, 890 N.W.2d 

853, 856 (Iowa 2017). This means we will decide anew the issues properly 

preserved for appellate review. In re Estate of Cory, 184 N.W.2d 693, 695 

(Iowa 1971). However, “we afford deference to the district court for 

institutional and pragmatic reasons.” Hensch v. Mysak, 902 N.W.2d 822, 

824 (Iowa Ct. App. 2017). As such, we give weight to the district court’s 

factual findings. Chapman, 890 N.W.2d at 856; Hensch, 902 N.W.2d at 

824.
3

To establish an entitlement to relief, the substitute petitioners were 

required to prove by a preponderance of the evidence their father was a 

vulnerable elder subject to elder abuse. See Iowa Code § 235F.5(1) (setting 

forth the burden of proof). A “vulnerable elder” is “a person sixty years of 

age or older who is unable to protect himself or herself from elder abuse 

as a result of age or a mental or physical condition.” Id. § 235F.1(17). In 

Chapman, we held a petitioner must prove “(1) [t]he person [is] sixty years 

or older, and (2) is unable to protect himself or herself from elder abuse as 

a result of one of the following: (a) age, (b) a mental condition, or (c) a 

physical condition.” 890 N.W.2d at 857. The Code sets forth four 

categories of elder abuse, including, as relevant here, financial 

exploitation. Iowa Code § 235F.1(5)(a)(1)–(4). Financial exploitation 

occurs 

when a person stands in a position of trust or confidence with 

the vulnerable elder and knowingly and by undue influence, 

deception, coercion, fraud, or extortion, obtains control over 

or otherwise uses or diverts the benefits, property, resources, 

belongings, or assets of the vulnerable elder. 

Id. § 235F.1(8). 

The substitute petitioners contend age, standing alone, is sufficient 

to establish a person is a vulnerable elder. We disagree. It appears the 

challenged transactions occurred in August, September, and October of 

2015. At the time, George was eighty-five or eighty-six years old. However, 

the Code and Chapman make clear the substitute petitioners were 

required to prove both that George was sixty years old or older at the time 

of the challenged transactions and that George was unable to self-protect 

due to one of the statutorily-specified causes—age, mental condition, or 

physical condition.1 See id. § 235F.1(17); Chapman, 890 N.W.2d at 857. 

 1A recent statutory amendment bolsters our conclusion the legislature did not 

intend for individuals to qualify as vulnerable elders based on age alone. On May 10, 
4

Absent proof of the inability to self-protect, the statute would encompass 

garden-variety legal claims involving persons age sixty or older. Such a 

result is overbroad in two respects: first, it creates a cause of action for 

persons outside the intended scope of the statute; second, it creates 

unintended legal exposure for persons who happen to be in a dispute with 

someone who is over the age of sixty but who is not otherwise a vulnerable 

elder.

In the alternative, the substitute petitioners argue they proved 

George was unable to protect himself at the relevant time due to his 

declining mental health. They rely primarily on a cognitive-function 

evaluation performed in October 2016 by neuropsychologist Dr. Daniel 

Tranel. Dr. Tranel diagnosed George with progressive dementia. 

Dr. Tranel reevaluated George one year later in October 2017. After that 

evaluation, Dr. Tranel concluded George’s cognitive functioning was in 

continuing decline and George was not able to care for himself without 

support. Dr. Tranel provided a retrograde assessment and found George

might have been mildly impaired at the time of the challenged 

transactions. In addition to Dr. Tranel’s opinion, the substitute petitioners 

rely on the fact George changed his legal affairs and his estate plan on 

multiple occasions in 2015 and 2016. They contend the changes evidence 

George’s inability to self-protect. 

On de novo review, we conclude the substitute petitioners failed to 

prove George was a vulnerable elder at the time of the challenged 

transactions. With respect to the medical evidence, while Dr. Tranel’s 

deposition testimony is relevant, it is not dispositive. See In re Estate of 

Springer, 252 Iowa 1220, 1225, 110 N.W.2d 380, 384 (1961) (stating “the 

 

2019, Iowa Code section 235F.1(17) was amended to remove age as one of the statutorilyspecified causes that could be used to show a vulnerable elder is unable to self-protect.

See 2019 Ia. Legis. Serv. ch. 118 (H.F. 328) (West 2019).
5

condition of the testator’s mind at other times” merely “throw[s] light upon 

the condition of [her] mind at the time of making the will”). There was 

contemporaneous medical evidence contrary to Dr. Tranel’s opinion that 

showed George was not suffering from any mental health conditions at the 

relevant time. George underwent a mini mental status evaluation in 2015 

and scored 29/30. During that year, George also attended regular 

appointments with his primary care physician of more than thirty years. 

George’s medical records from May 2014 through May 2016 show that his 

memory and judgment were within normal limits; the records make no 

reference to dementia. In July 2015, nursing home staff reported that 

George had clear comprehension. 

George’s conduct during the relevant time also showed his mental 

health was unimpaired. After George’s wife died in 2014, George served 

as executor of her estate. He was issued a state driver’s license in the 

same year. George managed his own finances until midyear in 2016 when 

he established a voluntary conservatorship. He served as a trustee for the 

Elk River Township well into 2016 and regularly attended township 

meetings. He continued to work on his farm. In short, George was active 

and appeared to be in good health. There was no indication from his 

conduct that George was unable to protect himself.

The evidence showed that people who interacted with George during 

the relevant time period thought George competent and had no concern 

regarding his mental health and ability to conduct his own affairs. Joel 

Kaczinski, an acquaintance of George’s since childhood, notarized 

George’s farm leases in 2014 and believed George to be competent at the 

time. George interacted with two different attorneys during the relevant 

time, and neither questioned his competency. Rebecca Widener, who had 

known George for twenty years, testified she visited George in early 2016 
6

and noticed no cognitive impairment. There was also evidence showing 

the substitute petitioners treated George as though he could handle his 

own affairs. In February 2016, Ronald and Dianne reported to law 

enforcement that George was “of good mind” and was capable of operating 

a vehicle. In November 2015, after the transactions at issue in this case, 

Ronald borrowed $3000 from George through an executed loan agreement. 

At trial, Ronald was unable to reconcile his claim that George was a 

vulnerable elder with the fact that Ronald borrowed money from George at 

the same time. Ronald testified, “I don’t square that circle. I don’t have to 

square that circle.” Ronald’s inability to “square that circle” casts doubt 

on his credibility and current allegations. 

The most telling evidence that George was able to protect himself 

during the relevant time period is the fact he did so. In February and 

March 2016, George complained to his attorney that he was frustrated 

with the family’s bickering over the farmland. George then took the 

initiative to establish a voluntary conservatorship to protect himself and 

stop the children from bothering him regarding the farmland. Clinton 

National Bank served as George’s conservator.

We further note the evidence showed the changes to George’s estate 

plan were consistent with George’s intentions. Attorney Glenn Bartelt 

testified George’s “number one priority in his estate plan [was] to maintain 

the Struve family farming operation beyond his lifetime.” George’s 

decisions to enter into below-market-rate lease agreements for the benefit 

of Clayton and to deed Perry and Clayton most of the family farmland were 

consistent with George’s and his wife’s intent to keep the farms within the 

family. Perry was the only one of their children who pursued farming as 

an occupation, and Clayton was the only one of their grandchildren who 
7

pursued farming. The transactions at issue here are merely a continuation 

or culmination of a plan to keep the farms within the Struve family. 

In sum, on de novo review, we conclude the substitute petitioners 

failed to prove by a preponderance of the evidence that George was a 

vulnerable elder at the time of the challenged transactions. Because we 

conclude the substitute petitioners failed to prove George was a vulnerable 

elder, we need not address the issue of whether the substitute petitioners 

proved financial exploitation within the meaning of the statute.

II.

The substitute petitioners also raise several procedural challenges. 

The substitute petitioners argue the district court should have allowed 

them to amend their petition so as to join additional causes of action and 

to join Struve Boy Farms, LLC, as a defendant. Struve Boy Farms was the 

business entity created for Clayton’s farming operation. The substitute 

petitioners also contend the district court should have allowed discovery 

of George’s attorneys’ files. Underlying these claims of error lies a 

disagreement between the parties regarding the nature of chapter 235F: 

the substitute petitioners contend chapter 235F creates a cause of action 

to be prosecuted like any other action; and the defendants contend chapter 

235F is a limited, summary proceeding. We first address the nature of 

chapter 235F.

A.

The general assembly enacted chapter 235F in 2014. See 2014 Iowa 

Acts, ch. 1107, §§ 1–8 (codified at Iowa Code § 235F). The Act provides, 

“A vulnerable elder or a substitute petitioner may seek relief from elder 

abuse by filing a verified petition in the district court.” Iowa Code 

§ 235F.2(1). A “substitute petitioner” is “a family or household member, 

guardian, conservator, attorney in fact, or guardian ad litem for a 
8

vulnerable elder, or other interested person who files a petition under this 

chapter.” Id. § 235F.1(15).

Review of the statutory framework shows the statute is a summary 

proceeding intended to provide expedited relief. The Code states that a 

petitioner must file a verified petition containing specific information. Id.

§ 235F.2(1). Standard forms, similar to the forms provided in summary 

proceedings for relief from domestic abuse arising under chapter 236, are 

made available to any petitioner. Id.; see also id. § 236.3A. The standard 

forms are required to be used by pro se petitioners. Id. § 235F.3(1)–(2). 

Temporary relief can be provided on an ex parte basis. Id. §§ 235F.2(2),

235F.5(2). The Code requires the action be expedited. Specifically, the 

district court must hold a hearing on the petition “[n]ot less than five and 

not more than fifteen days after commencing a proceeding and upon notice 

to the other party.” Id. § 235F.5(1). Because of the expedited hearing 

requirement, civil discovery is not available under chapter 235F. Indeed, 

under the rules of civil procedure, discovery could not even be initiated 

prior to the expedited hearing date. See Iowa R. Civ. P. 1.507(1) (providing 

for a discovery conference no later than “21 days after any defendant has 

answered or appeared”); id. 1.505(1)(a) (“[P]art[ies] may not seek discovery 

from any source before the parties have [conducted a discovery 

conference].”). Instead of civil discovery, “[u]pon application of a party, the 

court shall issue subpoenas requiring attendance and testimony of 

witnesses and production of papers.” Iowa Code § 235F.5(4). 

The relief available also shows the proceedings are limited in nature. 

The Code provides the court may direct a defendant to refrain from 

controlling or transferring the vulnerable elder’s “funds, benefits, property, 

resources, belongings, or assets.” Id. § 235F.6(2)(a), (d). The district court 

may also require the defendant to “return custody or control” of the same 
9

to the vulnerable elder. Id. § 235F.6(2)(b). The district court may provide 

additional relief but only if “necessary to prevent or remedy the financial 

exploitation.” Id. § 235F.6(2). “The court may order that the defendant 

pay the attorney fees and court costs of the vulnerable elder or substitute 

petitioner.” Id. § 235F.6(7). The Code specifically prohibits the district 

court from “[a]llow[ing] any person other than the vulnerable elder to 

assume responsibility for the funds, benefits, property, resources, 

belongings, or assets of the vulnerable elder.” Id. § 235F.6(3)(a). The 

district court may not “[g]rant[] relief that is more appropriately obtained 

in a protective proceeding filed under chapter 633.” Id. § 235F.6(3)(b). 

Further, the district court is prohibited from entering any order “affect[ing]

title to real property.” Id. § 235F.6(8).

For these reasons, we conclude the defendants have the better 

argument. Chapter 235F is a summary proceeding intended to provide 

limited but expedited relief to a vulnerable elder subject to elder abuse. 

B.

With that background, we address the district court’s ruling on the 

substitute petitioners’ motion for leave to amend the petition. Our review 

is for an abuse of discretion. See Daniels v. Holtz, 794 N.W.2d 813, 817 

(Iowa 2010) (“Denial of a motion to amend will only be reversed where a 

clear abuse of discretion is shown.”).

Although chapter 235F is a summary proceeding, this case was not 

prosecuted in accord with the statute. The substitute petitioners filed their 

petition on September 9, 2016. The case did not come on for an expedited 

hearing within fifteen days as required by the Code. Instead, the case was 

docketed and treated as a regular civil action. Over the next year, the 

parties conducted significant discovery and motion practice. More than 

one year later, in November 2017, a different district court judge was 
10

assigned to the case. The new judge concluded chapter 235F proceedings 

were summary proceedings and the prior discovery and motion practice 

were improper. The new judge denied the substitute petitioners’ pending 

motion to amend the petition to add additional claims and the motion to 

amend the petition to add Struve Boy Farms, LLC as a defendant. The 

new judge emphasized the matter should proceed to trial as soon as 

possible. 

The district court did not clearly abuse its discretion in denying the 

motion for leave to amend to add additional claims to the petition. Our 

understanding of the structure and purpose of the statute leads us to 

conclude joinder of additional claims to a petition for relief from elder 

abuse is disallowed and leads us to conclude the assertion of 

counterclaims is also disallowed. As noted, chapter 235F is a summary 

proceeding. The joinder of additional claims would frustrate the expedited 

nature of the proceeding or would force the defendants to defend additional 

claims without the procedural rights set forth in the rules of civil 

procedure. For example, chapter 235F provides the district court must 

hold a hearing within fifteen days of filing a petition for relief from elder 

abuse and notice to the defendant, but the rules of civil procedure provide 

a party with twenty days to file an answer to any claim. Compare Iowa 

Code § 235F.5(1), with Iowa R. Civ. P. 1.303(1). By way of another 

example, as discussed above, ordinary civil discovery under chapter 235F 

is effectively disallowed due to the timing and sequencing of civil discovery. 

In addition, substitute petitioners qua substitute petitioners lack 

standing to assert claims on behalf of a vulnerable elder. Chapter 235F

grants them only the authority to “file[] a petition under this chapter.” 

Iowa Code § 235F.1(15). It does not grant them authority to assert any 

and all claims on behalf of the allegedly vulnerable elder. Indeed, while 
11

the Code authorizes a substitute petitioner to file a petition under chapter 

235F, it does not authorize a substitute petitioner to act in any broader 

capacity on behalf of the vulnerable elder. The statute explicitly preserves 

the vulnerable elder’s rights “to contact and retain counsel,” to access 

personal records, to object to any protective order entered in the case, “[t]o 

request a hearing,” and “[t]o present evidence and cross-examine 

witnesses at [any such] hearing.” Id. § 235F.2(5)(a)–(e). 

In short, the joinder of common law claims is wholly inconsistent 

with chapter 235F, but the disallowance of the joinder of additional claims 

works no substantial hardship on a vulnerable elder or a substitute 

petitioner. It is not at all unusual to disallow or limit the joinder of claims 

or assertion of counterclaims in statutorily-limited causes of action. See, 

e.g., id. § 598.3 (disallowing joinder of causes of action for dissolution-ofmarriage proceedings); id. § 643.2 (providing that in a replevin action 

“there shall be no joinder of any cause of action not of the same kind, nor 

shall there be allowed any counterclaim”); id. § 646.1 (disallowing joinder 

of claims in actions for the recovery of real property); id. § 648.19(1)

(disallowing joinder of actions in forcible-entry-and-detainer proceedings); 

id. § 651.7 (limiting joinder of claims in partition proceedings). Further, 

the Code makes clear the parties can assert additional claims outside 

chapter 235F in the normal course. See id. § 235F.8(1) (“A proceeding 

under this chapter . . . is in addition to any other civil or criminal 

remedy.”). 

We next address whether the district court abused its discretion in 

disallowing the motion to amend to add Struve Boy Farms, LLC as an 

additional defendant. Iowa Code section 235F states only “a person” can 

be found to have committed elder abuse through financial exploitation. Id.

§ 235F.1(8). The district court concluded an LLC was not a person within 
12

the meaning of the statute and therefore an LLC could not commit elder 

abuse and could not be added as a defendant. We conclude this was legal 

error. The district court abused its discretion in disallowing the 

amendment.

Section 235F does not define the term “person.” However, Iowa Code 

section 4.1(20) states, “Unless otherwise provided by law, ‘person’ means 

individual, corporation, limited liability company, government or 

governmental subdivision or agency, business trust, estate, trust, 

partnership or association, or any other legal entity.” Id. § 4.1(20) (second 

emphasis added). We must apply that definition of the term “person” 

“unless such construction would be inconsistent with the manifest intent 

of the general assembly, or repugnant to the context of the statute.” Id.

§ 4.1. 

Defining “person” to include LLCs for purposes of section 235F.1(8) 

is consistent with both the legislative intent and the context of chapter 

235F. That chapter was designed to protect vulnerable elders from abuse. 

See Chapman, 890 N.W.2d at 858–59. The exclusion of LLCs from the 

definition of “person” would allow individuals to use LLCs as shields 

behind which they could commit abuse. There is no reason to exclude 

LLCs from the operation of the statute. 

Application of the canon expressio unius est exclusio alterious

supports the conclusion the term “person” includes LLCs. See Kucera v. 

Baldazo, 745 N.W.2d 481, 487 (Iowa 2008) (applying the canon of 

construction to “discern legislative intent”); Marcus v. Young, 538 N.W.2d 

285, 289 (Iowa 1995) (same). According to that canon of construction, 

“legislative intent is expressed by omission as well as by inclusion, and the 

express mention of one thing implies the exclusion of others not so 

mentioned.” Kucera, 745 N.W.2d at 487 (quoting Meinders v. Dunkerton 
13

Cmty. Sch. Dist., 645 N.W.2d 632, 637 (Iowa 2002)). Here, Iowa Code 

section 235F.1(14) excludes certain entities from the operation of the 

statute:

“Stands in a position of trust or confidence” means the person 

. . . 

. . . .

. . . [i]s a person who is in a confidential relationship 

with the vulnerable elder. . . . [A] confidential relationship does 

not include a legal, fiduciary, or ordinary commercial or 

transactional relationship the vulnerable elder may have with 

a bank incorporated under the provisions of any state or 

federal law, any savings and loan association or savings bank 

incorporated under the provisions of any state or federal law, 

any credit union organized under the provisions of any state 

or federal law, . . . or any agent, agency, or company regulated 

under chapter 505, 508, 515, or 543B.

The fact the legislature specifically excluded certain types of business 

associations from liability under chapter 235F without excluding LLCs, 

generally, supports the conclusion the term “person” includes LLCs unless 

otherwise excluded by section 235F.1(14). 

Although we conclude the district court abused its discretion in 

denying the motion for leave to amend on the ground stated, we conclude 

remand is not necessary. “It is well-settled that nonprejudicial error is 

never ground for reversal on appeal.” Jones v. Univ. of Iowa, 836 N.W.2d 

127, 140 (Iowa 2013). Here, the substitute petitioners failed to prove 

George was a vulnerable elder as a threshold for relief. Whether or not 

Struve Boy Farms, LLC was joined as a defendant was immaterial to this 

issue and remand is not necessary.

C.

In their final claim of error, the substitute petitioners contend the 

district court should have allowed discovery of George’s attorneys’ 

respective files. “We review the district court’s decisions regarding 
14

discovery for an abuse of discretion.” Comes v. Microsoft Corp., 775 N.W.2d 

302, 305 (Iowa 2009). “An abuse of discretion consists of a ruling which 

rests upon clearly untenable or unreasonable grounds.” Lawson v. 

Kurtzhals, 792 N.W.2d 251, 258 (Iowa 2010). In reviewing decisions 

regarding discovery, we give the district court wide latitude. Exotica 

Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801, 804 (Iowa 2000).

The issue regarding discovery of George’s attorneys’ files arose twice 

during the district court proceeding. Initially, the substitute petitioners 

served subpoenas on George’s attorneys, and the attorneys resisted the 

subpoenas. During trial, the district court ruled George’s guardian ad 

litem could waive George’s attorney–client privilege and the attorneys 

would be allowed to testify but the substitute petitioners could not obtain 

discovery of the files. The court stated,

This also gets back to . . . the conversation that we’ve had 

numerous times on this case in the past. It’s a summary 

proceeding. Normally there wouldn’t b[e] any discovery. But 

in this particular case we’re here, they’re here, I’ll expect them 

to testify, but as far as having access to their file, no. 

Between the second and third days of trial, the guardian ad litem filed an 

application for access to George’s attorneys’ files. The district court denied 

the application.

We need not resolve the issue of whether the district court abused 

its discretion in disallowing discovery of the attorneys’ files. Even if we 

were to find the district court’s ruling was an abuse of discretion, the error 

would be harmless. “It is well-settled that nonprejudicial error is never 

ground for reversal on appeal.” Jones, 836 N.W.2d at 140. “Furthermore, 

we do not presume the existence of prejudice based on an erroneous 

discovery ruling.” Id. “[T]he burden rests upon the appellant not only to 

establish error but to further show that prejudice resulted.” Id. (alteration 
15

in original) (quoting In re Behrend’s Will, 233 Iowa 812, 818, 10 N.W.2d 

651, 655, (1943)). 

The substitute petitioners have not made any attempt to show how 

the discovery of the attorneys’ files would have changed the outcome of the 

case. Instead, they merely assert they have lost the opportunity to access 

information. “A bare assertion of prejudice based on an inability to ‘access 

all the evidence’ is not enough.” Id. at 141. This record affirmatively shows 

a lack of prejudice. The district court allowed the attorneys to testify 

without any restriction regarding their communications with George. 

There is no showing or claim the client files would have revealed additional 

information not divulged during trial. 

Accordingly, we affirm the district court’s rulings denying access to 

the attorneys’ files.

III.

For these reasons, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except Appel, J., who concurs specially.
16

#18–0316, Struve v. Struve

APPEL, Justice (concurring specially).

I agree with the majority that substitute petitioners here did not 

prove elder abuse by a preponderance of the evidence. I also agree that, 

to the extent the district court committed procedural errors, these do not 

rise to the level of reversible error.

I write separately for two reasons. First, the question of whether 

George Struve was a vulnerable elder is, I think everyone agrees, a close 

one. See Iowa Code § 235F.1(17) (2016); In re Chapman, 890 N.W.2d 853, 

857–58 (Iowa 2017). On this issue, we make no grand legal 

pronouncement, but only announce the result of a granular, de novo 

review of the evidence before the court.

There was evidence supporting the substitute petitioners in this 

case. For instance, there was evidence that after the death of his wife, 

George did not seem to know where her will was or who drew it up. There 

was evidence that George did not remember a recent canoe trip with one 

of his sons shortly after his wife’s death.

Although a local doctor administered a test that found George had 

good mental status, the substitute petitioners offered expert testimony 

noting the shortcomings of the examination. Yet, the substitute 

petitioners’ expert first examined George in October 2016, while the key 

transactions in question occurred a year earlier. The expert testified that 

there would have been some “milder” deficits in 2015 but that he could 

not testify exactly about George’s mental state at that time.

On the other hand, there were lay witnesses who testified George 

was essentially of sound mind. But some of the lay testimony related to 

encounters well before fall 2015. Attorneys Steven Kahler and Glenn 
17

Bartelt testified that George was of sound mind when they assisted him in 

various transactions. 

In this close case and on de novo review, I concur in the result 

reached in division I of the majority opinion because the substitute 

petitioners did not meet their burden of proving George was a vulnerable 

elder by a preponderance of the evidence. The evidence is mixed, but the 

notion that George wanted to ensure continued operation of the family 

farm by Perry and Clayton strikes me as quite plausible and does not 

appear to have been the product of duress. As pointed out by the majority, 

he seemed aware of family dynamics and took steps to protect himself. 

While the substitute petitioners may have proved that George had limited 

capacity later, they did not prove that George’s capacity was limited at the 

time he executed the relevant documents in fall 2015. 

Second, I think proceedings under the elder abuse statute are not 

necessarily summary proceedings. It is true, as the majority points out, 

that the statute provides for a hearing within five to fifteen days of the 

filing of a petition. Iowa Code § 235F.5(1). But the statute also authorizes 

the district court to continue the hearing, id. § 235F.5(3), (5), and allows 

the district court to enter temporary orders while a hearing is continued, 

id. § 235F.5(3). Additionally, by making the rules of civil procedure 

applicable and providing for continuances, the statute suggests that 

discovery and motion practice can be appropriate. See id. §§ 235F.5(3), 

.8(1); see also id. § 235F.4 (“The court may on its own motion or on the 

motion of a party appoint a guardian ad litem for a vulnerable elder if 

justice requires.”).

Further, the broad remedies authorized by the statute—including 

injunctive relief, various dispositions associated with property, payment of 

attorney fees and other costs, entrance of consent orders, and “other relief 
18

that the court considers necessary to provide for the safety and welfare of 

the vulnerable elder”—might very well necessitate a continuance for 

discovery or negotiation among the parties. Id. §§ 235F.2(3)(c), .6. Still, 

because the substitute petitioners in this case were able to continue the 

hearing and conduct discovery, I do not find reversible error on this issue. 

I therefore concur in the result reached in division II of the majority 

opinion.