The court of appeals here rejects the County’s contention that it need not prove incompetency at a Chapter 55 commitment continuation hearing, but upholds the order for continued protective placement because Terry waived any errors in the jury instructions and special verdict and because the real controversy was tried.
Of course the County has to prove incompetency at a continuation hearing:
[T]he individual’s incompetence … may change with time. It is because this possibility exists that we hold protectively placed individuals are entitled to the right of periodic, automatic judicial review….” Watts, 122 Wis. 2d at 83. It makes no sense to require annual reviews of protective placements that do not require that the individual be found incompetent. The “has been determined” wording of § 55.08(1)(b) makes clear that a finding of incompetency, along with the other standards of § 55.08(1), is a prerequisite to a court’s initial and continuing orders for protective placement. Slip op. ¶9.
The instructions and special verdict for this case did not ask the jury to find Terry incompetent in a single, separate question, and they were confusing. Unfortunately, Terry failed to object to these deficiencies during the jury instruction conference and thus the court of appeals held that he waived the issue. Slip op. ¶10-¶12. It also rejected his claim that the real controversy was not tried because the competency issue was covered by other special verdict questions, and, as a whole, the special verdict and instructions correctly stated the law. Slip op. ¶13 (citing Weborg v. Jenny, 2012 WI 67, 341 Wis. 2d 668, 816 N.W.2d 191). Terry’s claim that the instructions and verdict conflated the protective placement issue with the need for a guardian also failed for lack of proof that this confused the jury. They were not, according to the court of appeals, so confusing as to create a reasonable possibility that the outcome fo the case was affected by them. See §805.18(2). Slip op. ¶17.