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CoA says advanced planning doesn’t trump guardianship and protective placement

Sauk County v. W.B., 2021AP322, 9/9/22, District 4, (1-judge opinion, ineligible for publication; case activity

This decision should strike fear in the hearts of those who have executed a healthcare power of attorney or who hold an HPOA for a loved one. According to the court of appeals, when a court declares a person incapacitated and activates his HPOA, his agent may admit him to a nursing home. But the incapacitated person retains the power to revoke his HPOA and leave the nursing home. To prevent this result, a court must order a guardianship and protective placement for him.

In 2012, W.B. executed a durable power of attorney and a healthcare power of attorney. Both named W.B.’s son as his agent.  In 2015, W.B. had a stroke and was found incapacitated. His son placed him in a nursing home where he receives 24-hour care.

W.B.’s son, his GAL, and the County agree on two critical facts: (1) W.B. is incompetent and qualifies for a ch. 54 guardianship and a ch. 55 protective placement; (2) W.B. needs to be in a nursing home.

In 2002, W.B. began expressing a desire to leave his nursing home, so the County petitioned for a ch. 54 guardianship and a ch. 55 protective placement.  W.B.’s lawyer asked the circuit court to dismiss the petitions, pursuant to §54.46(1)(a), which provides that if a court finds that advanced planning by the ward, as specified in s. 54.10(3)(c)3, renders the guardianship unnecessary, it shall dismiss the petition. Opinion, ¶5.

Section 54.10(3)(c)3 in turn provides that in appointing a guardian, declaring a person incompetent to exercise a right under 54.25(2)(c), or determining what powers a guardian shall have, the court shall consider . . . .”[w]hether the proposed ward has engaged in any advanced planning for financial and health care decisionmaking that would avoid a guardianship, including . . . a power of attorney for health care as defined in s. 155.01(10) . . .”

The County and the GAL argued that because W.B. expressed a desire to leave his nursing home, his son lacked the authority to make him stay there. They asked the circuit court to “invalidate” W.B.’s HPOA and order a guardianship and protective placement instead.

Query why the County and the GAL needed the court to “invalidate” an HPOA that does not give the son/agent the power to make W.B. stay at the nursing home?

According to the court of appeals, W.B.’s HPOA gives his son the authority to admit him to a nursing home, but it does not expressly say that he can keep W.B. there over his objection. Opinion, ¶¶14-15. 

Translation: The HPOA gave the son the authority to walk his dad over the threshold of the nursing home door. But his incompetent father retained the authority to turn around, walk out, and wander into the street.

W.B.’s HPOA also contains this mandatory statutory language: “You have the right to make decisions about your health care. No health care may be given to you over your objection, and necessary health care may not be stopped or withheld if you object.” According to the court of appeals, a person may exercise these rights even while incapacitated. Indeed, if the legislature had wanted to reserve these rights for people who are actually competent to make their own healthcare decisions, it would have said so. Opinion, ¶16-17.

The court of appeals also notes that W.B.’s HPOA and §155.30(1) expressly give him the power to revoke his HPOA “at any time.” The only thing that can prevent him from revoking his HPOA is a ch. 54 guardianship. Opinion, ¶¶20-21.

Presumably, the court that declared W.B. incapacitated and activated his healthcare and durable power of attorneys found him incompetent to make legal decisions. Wouldn’t that finding prevent him from revoking his HPOA after he became incapacitated?

The court of appeals has turned the HPOA statute on its head. The whole point of executing a HPOA is to prevent the very situation that occurred here. When you are of sound mind you choose someone you trust to make healthcare decisions for you in the event that you become incapacitated. If you don’t execute an HPOA and you become incapacitated, then the government could step in, place you in an underfunded, short-staffed government-run institution, and make decisions for you.

Two bits of good news. This opinion is unpublished so it is persuasive, not binding, authority. Also, W.B. filed a petition for review arguing, among other things, that if the court of appeals interpretation of ch. 155 is correct, there’s no point in executing an HPOA.

You have to wonder why the County is taking such an aggressive position against W.B. and his son? It’s possible that it has a financial incentive to do so.

Pursuant to §46.10, when a county commits a person under ch. 51 or places him under ch. 55, it may collect fees for care, maintenance, services, and supplies that it provides not only from the individual, but also from his estate, his spouse, their homestead, their property, his parents, their homestead, and their property.  The County may also collect for the cost of the guardianship See e.g. Ethelyn I.C. v. Waukesha County, 221 Wis. 2d 109, 584 N.W.2d 211.

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