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COA: evidence sufficient for continued guardianship and protective placement

Winnebago County v. M.R.R., 2018AP273, 10/3/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

M.R.R. suffered a traumatic brain injury 35 years ago; he’s diagnosed with a personality change due to the injury and unspecified personality disorder. He was found incompetent and placed in a guardianship in 2015 and a protective placement in 2016; this is an appeal of the recent continuation of that guardianship and protective placement.

M.R.R. argues there was insufficient evidence for all three statuses the court placed him under: guardianship of the person, guardianship of the estate, and protective placement.

As to the first, he argues there was not adequate testimony that he is unable, because of his impairment, to handle information or make decisions to such an extent that he can’t provide for his own health and safety. Wis. Stat. § 54.10(3)(a)2. The court of appeals disagrees, noting testimony about M.R.R.’s unpredictable outbursts of violence as well as trouble with “insight, judgment, planning, and initiation.” (¶17-18).

Regarding guardianship of the estate, M.R.R. challenges a related element – that he be unable, because of his impairment, to manage his financial affairs. Wis. Stat. § 54.10(3)(a)3. The court again disagrees, citing testimony that he was vulnerable to abuse, exploitation, and neglect and that it was “very, very hard” for him to understand his finances due to memory problems caused by his impairment. (¶22-23).

On the protective placement, the only substantive challenge is to the third element: that M.M.R. be, as a result of his injury, “so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others.” Wis. Stat. § 55.08(1)(c). The court again finds this element met, citing a report saying

In the absence of a clear consistent pattern of managing his behavior appropriately, it is not possible to safely allow him to live independently. His lengthy time at Mendota, incidents at a group home placement, and even isolated
incidents in his current placement [in Madison] after only a couple of months, suggest that his rehabilitation is not unfaltering. He may not have constant incidents but the intensity and mercurial nature is alarming.

The question came down to his ability to sustain an extended period of emotional stability and impulse control. That has not been proven. Until he is more predictable and able to self-manage in the face of distress, recommending anything less than 24 hour supervision is too risky.


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