Knight v. Milwaukee County

2002 WI 27, 640 N.W.2d 773, 251 Wis. 2d 10, 2002 Wisc. LEXIS 221
CourtWisconsin Supreme Court
DecidedMarch 19, 2002
Docket00-0929
StatusPublished
Cited by21 cases

This text of 2002 WI 27 (Knight v. Milwaukee County) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knight v. Milwaukee County, 2002 WI 27, 640 N.W.2d 773, 251 Wis. 2d 10, 2002 Wisc. LEXIS 221 (Wis. 2002).

Opinions

ANN WALSH BRADLEY, J.

¶ 1. The petitioners, Jeffrey and Norris Knight, seek review of a published court of appeals decision dismissing their appeal from a circuit court order that revoked Muriel K's power of attorney documents naming the Knights as agents, protectively placed Muriel K., and appointed guardians of her person and estate.1 The Knights assert that the court of appeals erred in concluding that they lacked standing to appeal. We determine that the Knights have standing to appeal under Wis. Stat. § 879.27(1) [17]*17(1999-2000)2 as agents under health care and durable power of attorney documents. Accordingly, we reverse the court of appeals decision and remand to the court of appeals.

HH

¶ 2. In June 1999, with the assistance of Attorney Robert Moodie, Muriel K. executed a durable power of attorney pursuant to Wis. Stat. § 243.07. She named Jeffrey Knight as her agent under the durable power of attorney document, and granted him the following powers:

To do and perform all and every act, deed, matter, and thing whatsoever in and about my estate, property and affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person, if personally present, the specifically enumerated powers described in this power of attorney being in aid and exemplification of the full, complete, and general power granted and not in limitation or definition.

¶ 3. In accordance with § 243.07, Muriel K's durable power of attorney document contained a provision that the powers granted "shall not be affected by my subsequent disability or incapacity." Although § 243.07(3)(b) provides that a principal may nominate a guardian for the circuit court's consideration if protective proceedings are commenced, Muriel K.'s durable power of attorney document contained no nomination of a guardian. Subsequently, she also executed a health care power of attorney pursuant to Wis. Stat. ch. 155 and named Jeffrey and his father, Norris Knight, as her agents under that power of attorney.

[18]*18¶ 4. Shortly after executing the durable power of attorney for Muriel K., Attorney Moodie received a letter from Steve Underwood, a relative of Muriel K.'s who was named in her will. Underwood's letter expressed concern that Jeffrey was exercising undue influence over Muriel K. and explained that she previously had executed a power of attorney with another lawyer, John Raasch.

¶ 5. In early September 1999, with the assistance of Attorney Moodie, Muriel K. memorialized her estate plan and advance directives on videotape. She explained that she was making the video to prevent Underwood from contesting her will. In addition, she indicated that she was concerned that he would attempt to make it seem that she was subject to undue influence or that she was "not right in my head."

¶ 6. Near the end of October 1999 Chris Krizek, a Milwaukee County elder abuse investigator, received a referral that led her to visit Muriel K. at home. After finding Muriel K. in what Krizek described as a "stu-porous, possibly comatose" state, Krizek petitioned the circuit court to appoint guardians for Muriel K. and order protective placement. In the petition, Krizek alleged that the Knights were engaging in physical and financial abuse of Muriel K.

¶ 7. The probate court commissioner appointed a guardian ad litem for Muriel K. and issued an order for temporary guardianship that "suspended" Muriel K.'s powers of attorney. In the order, the court appointed Underwood as temporary guardian of her person. The court appointed Attorney Raasch temporary guardian of Muriel K.'s estate.

¶ 8. After the appointment of the temporary guardians, Attorney Moodie and the Knights filed appearances in the ongoing guardianship and protective [19]*19placement proceedings. The Knights objected to, among other things, the suspension of Muriel K.'s powers of attorney. The circuit court extended the temporary guardianship and appointed adversary counsel for Muriel K.

¶ 9. At the hearing for the permanent guardianship, the Knights appeared by counsel. Muriel K. was not present, and the Knights objected. They asserted that the circuit court lacked jurisdiction to proceed under Leinwander v. Simmons, 236 Wis. 305, 294 N.W. 821 (1940), which requires that a proposed ward be present at the hearing, if possible. See Bryn v. Thompson, 21 Wis. 2d 24, 30, 123 N.W.2d 505 (1963). The guardian ad litem argued, however, that it was not in Muriel K.'s best interest to attend because she became upset at the idea of coming to the hearing. Adversary counsel asserted that the Knights had no right to participate in the proceedings. The court agreed with the guardian ad litem and adversary counsel, and the hearing proceeded without Muriel K.'s presence and with limited participation by the Knights.

¶ 10. After the hearing, the court adjudicated Muriel K. incompetent and issued an order for protective placement. In the order, the court appointed Underwood as permanent guardian of Muriel K.'s person and Attorney Raasch as permanent guardian of her estate. The order also declared all previous powers of attorney revoked and invalid.3 The Knights appealed.

[20]*20¶ 11. The guardian ad litem and adversary counsel moved the court of appeals to dismiss the Knights' appeal, arguing that the Knights lacked standing to appeal. Although the court of appeals initially denied the motion, it ultimately agreed with the guardian ad litem and adversary counsel in its written decision.

¶ 12. In its decision, the court of appeals determined that the question of the Knights' standing turned on the interpretation of § 879.27(1) and (4). The court of appeals concluded that under § 879.27(1), only a "person aggrieved" may appeal and that the Knights were not persons aggrieved by the order revoking Muriel K.'s powers of attorney.

¶ 13. The court of appeals noted, however, that minors and incompetent individuals are under a disability such that when they are persons aggrieved, a question remains as to who may assert their rights. The court concluded that § 879.27(4) definitively and exclusively answers that question. The court explained as follows:

There are circumstances where minors would be "aggrieved" by an order of the probate court that affects them. Incompetents might also be "aggrieved" by a probate-court order. But both minors and incompetents are under a disability and their rights have to be asserted by others. It is here where Wis. Stat. § 879.27(4) kicks in; the section grants the right to pursue an appeal on behalf of a minor or an incompe[21]*21tent to two classes of persons: the guardian of the estate of the minor or incompetent, and the guardian ad litem. This right to appeal on their behalf is exclusive.

Knight v. Milwaukee County, 2001 WI App 147, ¶ 20, 246 Wis. 2d 691, 633 N.W.2d 222 (emphasis in original).

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Bluebook (online)
2002 WI 27, 640 N.W.2d 773, 251 Wis. 2d 10, 2002 Wisc. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-milwaukee-county-wis-2002.