IN THE COURT OF APPEALS OF IOWA

No. 14-1433

Filed July 22, 2015

IN THE MATTER OF THE 

GUARDIANSHIP OF G.M.,

G.M., Ward/Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Appanoose County, Annette J. 

Scieszinski, Judge.

A ward with intellectual disabilities appeals a district court’s denial of his 

motion to modify his residence. AFFIRMED.

Julie R. De Vries of De Vries Law Office, Centerville, for appellant.

Jonathan Willier, Centerville, guardian ad litem for ward.

Bradley M. Grothe of Craver & Grothe, L.L.P., Centerville, for guardian 

and conservator.

Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

G.M., diagnosed with mental retardation and developmental disability, was 

appointed a guardian and conservator. The guardian placed him in a home 

under the auspices of a nonprofit organization charged with caring for mentally 

challenged and chronically mentally ill individuals. The “Home and Community 

Based Services program” furnished twenty-four hour care. 

G.M. applied to change his living arrangement to an independent 

apartment with hourly services. Following trial, the district court denied the 

application. G.M. appealed.

G.M. contends the district court (1) should have allowed him to live in a 

less restrictive environment; (2) failed to consider alternative third-party 

assistance; and (3) erred in admitting hearsay evidence. Our review is de novo. 

Iowa Code § 633.33 (2013), Iowa R. App. P. 6.907. Under this standard,

evidence, which under the ordinary rules of evidence applicable to 

a civil trial would be excluded as hearsay, lacking a proper 

foundation, improper opinion evidence, or not the best evidence, is 

admissible in such proceedings and the nature of the evidence is to 

be considered as it affects its probative value rather than its 

admissibility. 

Harter v. State, 149 N.W.2d 827, 829 (Iowa 1967). “[O]bjections will be 

considered in relation to the weight to be given the evidence rather than its 

admissibility.” Id.

I. Less-Restrictive Residence

As a preliminary matter, we must decide what standards govern G.M.’s 

application. The district court provided invaluable assistance by seeking and 

obtaining clarification of the disparate statutory standards governing guardianship 
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proceedings. See Iowa Code §§ 633.635(5) (authorizing a court to modify the 

respective responsibilities of the guardian and ward “upon a proper showing” and 

incorporating the standards of section 633.551 “to the modification proceedings”),

633.551(3) (stating “In a proceeding to terminate a guardianship or 

conservatorship, if the ward is the petitioner, the ward shall make a prima facie 

showing of some decision-making capacity. Once a prima facie showing is 

made, the burden of persuasion is on the guardian or conservator to show by 

clear and convincing evidence that the ward is incompetent” but saying nothing 

about proceedings to modify guardianships if the ward is the petitioner (emphasis 

added)), 633.675 (referenced by section 633.635(5) as applicable to modification 

proceedings but again referring to burden in proceedings to terminate 

guardianships). G.M. and the guardian agreed G.M.’s application for a change of 

residence was essentially a request to modify the unlimited guardianship created 

earlier. They further agreed G.M. would have to make a prima facie showing of 

some decision-making capacity and, if this showing was made, the guardian 

would have the burden of persuading the court “that the full guardianship should 

proceed without limitation.” 

On appeal, G.M.’s guardian ad litem “concedes that at trial [G.M.] met his 

initial burden and made a prima facie showing that he has some decision-making 

capacity.” Accordingly, the only issue before us is whether the guardian carried 

his burden of persuading the district court that the guardianship should remain 

unlimited, leaving the decision of the ward’s residence with the guardian.

At trial, the guardian asserted he would have to prove the statutory 

requirements of section 633.552(a). This provision addresses the appointment of 
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guardians but is referred to in section 633.675(1)(c), a provision governing 

termination of guardianships. Section 633.675(1)(c) requires the guardian to 

allege the ward “[i]s a person 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.” The district court 

concluded the guardian satisfied his burden. On our de novo review, we agree. 

G.M. testified he was sixty-six years old. He had been under a 

guardianship since he was fifty-nine. At the time of the appointment, he was 

malnourished, living in unhygienic conditions, and unable to manage his 

finances.

A physician assistant who treated and befriended G.M. in 2005 and 2006 

testified G.M. recognized his inability to manage many aspects of daily living and 

asked her to assist in obtaining services and the appointment of a guardian. 

She opined G.M. needed twenty-four hour monitoring “[b]ecause of his current 

physical and his mental disabilities.” She further opined hourly services would 

not be adequate to ensure his safety.

G.M.’s guardian seconded this opinion. He testified to “several episodes 

when [G.M.] has fallen or been disoriented when if somebody hadn’t been there, 

who knows what could have happened.” He also agreed with the physician’s 

assistant that G.M. had “a real problem with [] making executive decisions,” 

which would “continue to be a problem.” He described G.M. as “pleasant” and 

able to “interact[] well with people” but possessed of “a tendency to think he is 

more capable than he is.” 
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A supervisor at an organization providing services to G.M. catalogued the 

risks of living independently, including G.M.’s inability to follow-up with medical 

needs, malnutrition, poor hygiene, and exploitation by others. Hourly services, in 

her view, would not alleviate the risks, particularly those associated with his 

medical conditions. She opined the progress he made was “due to the staff . . . 

available to him” and G.M. was “in the most appropriate setting at this time.” 

We recognize G.M. was the most self-sufficient of the three residents in 

the home. He traveled alone to and from his place of employment, attended a 

medical visit on his own, and cooked and cleaned without assistance.

Understandably, then, he chaffed at the restrictions placed upon him. But the 

restrictions were minimal under the circumstances and addressed issues relating 

to his health and safety. On our de novo review, we conclude the district court 

appropriately concluded the guardian met his burden, and properly declined to 

modify the guardianship to allow G.M.’s placement in an independent living 

environment.

II. Alternative Third-Party Assistance 

Iowa Code section 633.551(4) states, 

In proceedings to establish, modify, or terminate a guardianship or 

conservatorship, in determining if the proposed ward or ward is 

incompetent as defined in section 633.3, the court shall consider 

credible evidence from any source to the effect of third-party 

assistance in meeting the needs of the proposed ward or ward. 

However, neither party to the action shall have the burden to 

produce such evidence relating to third-party assistance.

See also Iowa Code § 633.635(4) (authorizing court to consider “the availability 

of third-party assistance to meet the needs of the ward or proposed ward”). G.M. 

contends the district court failed to consider alternative service providers. To the 
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contrary, the record is replete with evidence concerning the efficacy of existing 

services and the availability of alternative services. 

The district specifically addressed G.M.’s dissatisfaction with the current 

living arrangement and his proposal for hourly services with another provider. 

While the court questioned the credibility of certain witnesses who testified on 

behalf of the existing service provider, the court nonetheless found G.M. in need 

of the twenty-four hour services he was currently receiving. We concur in the 

court’s findings, particularly where the alternate, “more objective” provider G.M. 

solicited found his existing services appropriate. We conclude the district court 

considered third-party assistance in meeting the needs of the proposed ward.

III. Hearsay Evidence

G.M. asserts the district court erred in admitting a psychological report. 

He challenges the foundation for the document and contends the document 

contains hearsay. The report, prepared by a psychologist who did not appear at 

trial, was admitted through the executive director of the organization providing 

G.M.’s existing services. She testified the organization was required by law to 

maintain records showing eligibility of the clients for the services and the 

eligibility document in this case was the psychological evaluation. The district 

court admitted the document subject to the objection.

We assume without deciding the guardian laid a proper foundation for the 

document and the document was admissible under the business-records 

exception to the hearsay rule. See State v. Musser, 721 N.W.2d 734, 750-52 

(Iowa 2006); Iowa R. Evid. 5.803(6). On our de novo review, we conclude the 
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guardian satisfied his burden of persuasion in support of an unlimited 

guardianship without reliance on the challenged document. 

We affirm the district court’s denial of G.M’s application for modification of 

the guardianship.

AFFIRMED.