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Competence of Court – Guardianship

MaryBeth Lipp v. Outagamie County Dept. of Health and Human Services, 2011AP152, District 3, 6/5/12

court of appeals decision (not recommended for publication); case activity

Failure to decide a guardianship petition within the statutorily mandated 90 days of filing (§ 54.44(1)) caused the trial court to lose competency to proceed. Lack of objection didn’t waive the issue, ¶¶11-12, citing Village of Trempealeau v. Mikrut, 2004 WI 79, ¶30, 273 Wis. 2d 76, 681 N.W.2d 190 and Sheboygan County Department of Social Services v. Matthew S., 2005 WI 84, ¶37, 282 Wis. 2d 150, 698 N.W.2d 631. The court also rejects the argument that competency is preserved so long as the hearing begins before the 90 days has run:

¶14      We disagree.  Wisconsin Stat. § 54.44(1)’s mandate that the petition “shall be heard within ninety days” plainly contemplates the hearing’s completion within that period.  See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (“If the meaning of the statute is plain, we ordinarily stop the inquiry and apply that meaning.”).  Although there are provisions that allow some statutory time limits to be extended for “good cause,” there is no such provision for guardianships.  For example, the protective placement statute, which uses identical “heard within” language, allows for a one-time forty‑five day extension of the time limit. See Wis. Stat.§ 55.10(1).  If the legislature had intended to allow a guardianship hearing to go beyond the ninety-day limit, it would have provided for an extension of the time limit.  See Kalal, 271 Wis. 2d 633, ¶44.  In fact, if “heard within” did not mean completion, the ninety-day time limit would be rendered meaningless and a guardianship case could be continued and extended repeatedly.

¶16      Because the circuit court failed to complete the guardianship hearing within ninety days, the court lost competency to act on the petition.  We therefore reverse the guardianship order.[2]  Additionally, because the protective placement order is dependent on the guardianship’s now-vacated incompetency adjudication, see Wis. Stat. § 55.06, we must also reverse the protective placement order.

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