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Court of appeals says Chapter 54 can override a person’s advance planning

E.C. v. Susan Krueger, 2015AP2196, 12/13/16, District 1 (not recommended for publication); case activity

E.C., an elderly woman with Alzheimer’s, planned for her future while she was still competent. She named her son, G.C., as her power of attorney for finances and health care. After she became incompetent, her family began fighting about her care. Krueger, E.C.’s daughter, filed a Ch. 54 guardianship proceeding. The issue in this case is whether Chapter 54 can trump a person’s advance planning.

G.C. and E.C. (through her guardian ad litem) challenged trial court orders suspending E.C.’s powers of attorney and appointing a third-party neutral as her guardian. The court of appeals affirmed both orders. You can read about factual disputes unique to this case at ¶¶3-13, 21-36.  But the legal issues merit some attention.

Standard of review. For starters, the court of appeals held that it reviews an order appointing a guardian and an order suspending a power of attorney for an erroneous exercise of discretion. ¶¶16-19. Apparently, E.C. argued for de novo review, and there was no case law on point.

Chapter 54 guardianship vs. advance planning. The court of appeals held that Chapter 54 can override advance planning:

No statute or case requires the trial court to disregard guardianship in favor of powers of attorney. All of the relevant guardianship and powers of attorney statutes, and case law, make clear that the trial court must consider all relevant evidence, including the existence of powers of attorney, but also many other factors, and then determine what is in the proposed ward’s best interest. The statutes give the trial court the discretion to dismiss the guardianship petition if it is unnecessary due to validly executed powers of attorney, or to limit or revoke the powers of attorney in favor of guardianship if good cause is shown. None of these statutory sections would be necessary if E.C.’s position was correct. The legislature could have easily said that the existence of powers of attorney trumps any guardianship. Not only did the legislature not do that, it did the opposite, creating explicit discretionary authority in the trial court to suspend the powers of attorney. ¶29. (See e.g. §54.15(1), (2), (3) and (7), §54.10(3)(c), and §54.46(2)(b) and (2)(c).

The statute governing powers of attorney, §155.60(1), lends support for this conclusion. It provides: “Nothing in this chapter prohibits an individual from petitioning a court in this state for a determination of incompetency and for appointment of a guardian for an individual who is a principal under this chapter.”

The individual’s right to due process.  E.C. argued that forcing her into a guardianship when she had powers of attorney in place violated her right to due process–e.g. her right to decide whether to accept medical care per Lenz v. L.E. Phillips Career Development Center, 167 Wis. 2d 53, 482 N.W.2d 60 (1992). She cited this passage specifically:

If the [patient’s] wishes are clear, it is invariable as a matter of law, both common and statutory, that it is in the best interests of the patient to have those wishes honored, for the patient has made the pre-choice of what he or she considers to be the best interests under the circumstances that arise. Lenz, 167 Wis. 2d at 79-80.

According to the court of appeals, Lenz doesn’t apply because the ward in that case had not signed a power of attorney. The quote above was thus “dicta” and not binding precedent. Furthermore, Knight v. Milwaukee County, 2002 WI 27, 251 Wis. 2d 10, 640 N.W.2d 773 holds that the best interest standard under Ch. 54 is “not necessarily co-extensive with what an individual has chosen or would choose if she were competent to do so.” ¶41.  This, the court  says, undercuts Lenz‘s dicta. You get the sense that the court of appeals is not too concerned about the individual’s right to plan for her own care; better to let the State take over. The briefs are confidential, so maybe the facts warrant this result. It’ hard to say. However, this unpublished opinion resolves issues of first impression while citing very little Chapter 54 case law and none directly on point. A definitive decision by SCOW could be helpful.

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