In Matter of Guardianship of Agnes T.

507 N.W.2d 373, 179 Wis. 2d 363, 1993 Wisc. App. LEXIS 1194
CourtCourt of Appeals of Wisconsin
DecidedSeptember 21, 1993
Docket92-1056
StatusPublished
Cited by3 cases

This text of 507 N.W.2d 373 (In Matter of Guardianship of Agnes T.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Matter of Guardianship of Agnes T., 507 N.W.2d 373, 179 Wis. 2d 363, 1993 Wisc. App. LEXIS 1194 (Wis. Ct. App. 1993).

Opinions

SULLIVAN, J.

Agnes T., by her guardian ad litem, Patricia M. Cavey, appeals from a judgment appointing a limited guardian for Agnes T. due to her incompetency.1 The issue on appeal is whether the [365]*365trial court may order a guardianship under chapter 880 for a resident of a nursing home absent a concomitant order for protective placement under chapter 55. We hold that it may not.

The facts of this case are undisputed. Milwaukee County filed a petition for guardianship for Agnes in 1990. Agnes was, and presumably still is, a resident of Bel Aire Health Care Center, a nursing home located in Milwaukee County, and has been a resident of that facility since her voluntary admission in 1974. At the petition hearing, all parties agreed that Agnes was incompetent and in need of a guardian under sec. 880.33, Stats. Nonetheless, both by her written report and at the hearing, the guardian ad litem objected to the petition for guardianship as filed by the Department. The guardian ad litem's sole complaint was that, because Agnes was a nursing home resident, the court could not appoint a guardian for Agnes unless it also ordered protective placement under chapter 55. The guardian ad litem recommended that the trial court either dismiss the petition, or alternatively, allow the County to amend its petition to include a petition for protective placement.

The trial court granted the County's petition for guardianship of Agnes, but denied the objection of the guardian ad litem, concluding that the court did not have "jurisdiction with regard to protective placement."2 The guardian ad litem appeals from that [366]*366decision, arguing that the trial court has created a situation which is contrary to the law of this state. We agree.

Section 880.33, Stats., governs the appointment of guardians for persons who, like Agnes T., are incompetent. The guardian ad litem correctly points out that while Chapter 880 provides the mechanism through which individuals are provided guardians, other statutes are necessarily implicated when dealing with persons with developmental disabilities and mental illness, namely, in the case of Agnes T., Chapter 55.

Chapter 55 of the Wisconsin Statutes, entitled "Protective Service System," establishes a system to provide protective services to those individuals who, for a variety of reasons, including chronic mental illness, mental retardation, developments disabilities, and the infirmities of aging,3 are in need of services but are not candidates for rehabilitation and treatment. 4See sec. 55.001, Stats. Chapter 55 also provides for protective placement, which is defined as "placement of a ward for the primary purpose of providing care and custody." Section 55.06(1), Stats.5

[367]*367Chapters 55 and 880 both contain statutes relevant to the issue presented in this case. Section 55.05(5), Stats., provides:

(b) 1. Guardians of persons who have been found incompetent under s. 880.33 may consent to admission to a foster home, group home or community-based residential facility . . . without a protective placement under s. 55.06 if the home or facility is licensed for fewer than 16 beds. Prior to providing that consent, and annually thereafter, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a home or facility that implements those rights.
2. Guardians of persons who have been found incompetent under s. 880.33 may consent to admission to a nursing home if the person is admitted directly from a hospital inpatient unit for recuperative care for a period not to exceed 3 months, unless the hospital admission was for psychiatric care. Prior to providing that consent, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a nursing home that implements those rights. Following the 3-month period, a placement proceeding under s. 55.06 is required.

Section 55.06(l)(d), Stats., provides:

No guardian or temporary guardian may make a permanent protective placement of his or her ward [368]*368unless ordered by a court under this section but may admit a ward to certain residential facilities under s. 55.05 (5) or make an emergency protective placement under s. 55.06 (11).

Similarly sec. 880.38(1), Stats., provides, in part:

A guardian of the person of an incompetent... may not make a permanent protective placement of the ward unless ordered by a court under s. 55.06 but may admit a ward to certain residential facilities under s. 55.05 (5) or make an emergency protective placement....

In 1974, Agnes T. voluntarily entered the nursing home where she presently resides.6 Recently, the court appointed a guardian for Agnes. The guardian ad litem argues that this appointment has presented the following problem. Because Agnes has been found incompetent, she is no longer able to consent to her placement in a nursing home. The only person able to consent to Agnes' placement in the nursing home is her newly-appointed guardian. Because the nursing home contains more than 16 beds, however, the applicable statutes do not allow the guardian to consent to such a placement without court-ordered protective placement under sec. 55.06, Stats. Thus, the guardian ad litem argues, that by denying her objection to guardianship without an order for protective placement under sec. 55.06, the trial court erred, and created an illegal placement for Agnes T.

[369]*369In response, the County argues that the relevant statutes only prohibit a guardian from admitting a ward to a nursing home. Thus, the County reasons, because Agnes was already a resident of the facility at the time she was adjudicated to be incompetent, her guardian was not required to admit her, and the placement does not present a problem.

It is true that the relevant statutes do not explicitly prohibit a guardian from merely allowing a ward to remain in a large facility that the ward voluntarily entered before becoming incompetent. See secs. 55.05(5)(b) and 55.06(l)(d), Stats. The statutes, however, do not explicitly permit the guardian to do so, either. Because the statutes are silent on the issue, we consider related statutory sections in an attempt to interpret secs. 55.05(5)(b) and 55.06(l)(d), Stats. See Plachta v. Plachta, 118 Wis. 2d 329, 332, 348 N.W.2d 193, 195 (Ct. App. 1984). Statutory interpretation presents a question of law that we review without deference to the conclusion of the trial court. Id.

We hold that the relevant statutes apply not only in a situation where a guardian must admit a ward to a facility, but also where a newly appointed guardian must consent to the continued placement of a current nursing home resident. Because the statutes do not allow a guardian to consent to a nursing home placement without a court order, the trial court erred in ordering only guardianship for Agnes T.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Matter of Guardianship of Agnes T.
525 N.W.2d 268 (Wisconsin Supreme Court, 1995)
In Matter of Guardianship of Agnes T.
507 N.W.2d 373 (Court of Appeals of Wisconsin, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
507 N.W.2d 373, 179 Wis. 2d 363, 1993 Wisc. App. LEXIS 1194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-matter-of-guardianship-of-agnes-t-wisctapp-1993.