In Re the Matter of the Guardianship and Conservatorship of Robert Kenneth Fagan, Ward Robert Kenneth Fagan, 17-0785

Robert K. Fagan, a 71-year-old proposed ward, was the subject of a district-court guardianship and conservatorship proceeding under Iowa Code chapter 633.
The district court appointed an attorney purportedly to represent Fagan, but that attorney functioned as a guardian ad litem (GAL), filed a GAL report recommending full guardianship/conservatorship, and did not advocate for Fagan’s expressed desire for independent living or for a limited guardianship.
Fagan did not obtain adversarial representation at the merits hearing; the appointed attorney did not perform the statutory duties of counsel (personal interview, advising of rights, adversarial advocacy).
On appeal Fagan argued a limited guardianship would be appropriate, but the court instead addressed whether he received proper representation.
The majority concluded Fagan’s statutory right to counsel was violated because his appointed attorney acted as GAL, creating an actual conflict and depriving him of counsel; the majority vacated the order and remanded for appointment of counsel and a new hearing.
The presiding judge dissented, arguing the dual-role conflict was not preserved by objection in probate court or raised as ineffective assistance on appeal and thus should be waived; she would have affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fagan was deprived of his statutory right to counsel when the appointed attorney acted as GAL rather than as counsel	The appointed attorney failed to act as counsel (no adversarial advocacy, no proper interview/advice); this denied Fagan his statutory and due-process right to representation	The probate court did appoint counsel; no objection was made below; having counsel (even if performing imperfectly) rendered the judgment voidable, not void, and the conflict issue was waived	Majority: Vacate and remand for appointment of counsel and new hearing; Dissent: issue waived for lack of preservation and would affirm
Whether the appellate court may raise the conflict-of-interest/dual-role issue sua sponte despite lack of objection below	Fagan’s appellate counsel had a conflict (same lawyer who acted as GAL); precedent allows courts to raise conflicts sua sponte to protect right to conflict-free representation	The dual-role issue should be preserved by objection or raised as ineffective-assistance on appeal; absent that, appellate court should not reach it sua sponte	Majority: Court may and should raise the issue sua sponte under precedents protecting conflict-free counsel; Dissent: courts should not raise it sua sponte where not preserved

Kent v. United States, 383 U.S. 541 (1966) (right to counsel is essential and must be effective)
Wood v. Georgia, 450 U.S. 261 (1981) (courts must address counsel conflicts of interest sua sponte when necessary to protect right to conflict-free representation)
Estate of Leonard ex rel. Palmer v. Swift, 656 N.W.2d 132 (Iowa 2003) (distinguishes role of guardian ad litem from ward's attorney; GAL advocates best interests, attorney advances ward's wishes)
In re Guardianship of Griesinger, 804 N.W.2d 527 (Iowa Ct. App. 2011) (failure of appointed counsel to act as ward’s attorney justified reversal and remand)
State v. Watson, 620 N.W.2d 233 (Iowa 2000) (court must raise/address conflicts of interest when court knew or should have known of them)
Garcia v. Wibholm, 461 N.W.2d 166 (Iowa 1990) (distinguishes void from voidable judgments based on presence or absence of counsel)
In re S.P., 672 N.W.2d 842 (Iowa 2003) (addressing finality and attackability of judgments entered without counsel)