George E. Struve, by Substitute Dianne Lawrence, Paul Struve, and Ronald Struve v. Perry Struve and Clayton Struve

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 statutorily-

specified 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-of-

marriage 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.