Florence County v. P. G. ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 22, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP966 Cir. Ct. No. 2019GN2
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF P. G.:
FLORENCE COUNTY,
PETITIONER-RESPONDENT,
V.
P. G.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Florence County:
LEON D. STENZ, Judge. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent
or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP966
¶1 PER CURIAM. P.G. appeals orders establishing guardianships of
his person and his estate, as well as an order for his protective placement. P.G.
argues the guardianship and protective placement orders must be reversed because
the circuit court failed to find—and the evidence did not support a finding—that
his needs could not be met through less restrictive means. P.G. alternatively
argues that the order establishing a guardianship of his estate must be reversed
because he previously executed a financial durable power of attorney that rendered
the guardianship unnecessary. We reject P.G.’s arguments and affirm.
BACKGROUND
¶2 In May 2019, an inebriated P.G., then age sixty-five, called police to
report that “there were people on his property building pyramids and damaging his
garage.” He was evaluated by social workers, who noted bruising throughout his
upper body and deemed him a danger to himself. A medical condition required
P.G. to be hospitalized, at which time he experienced withdrawal and was
diagnosed with “severely altered mental status and major neurocognitive disorder
secondary to longstanding chronic alcoholism with suicidal ideation and erratic
behavior.” In late May, he was released to the Winnebago Mental Health Facility,
and in June he was transferred to Florence Health Services, a nursing home.
¶3 Contemporaneous with P.G.’s transfer to Florence Health Services,
Florence County petitioned the circuit court to establish permanent guardianships
of P.G.’s person and estate, as well as his protective placement. A guardian ad
litem (GAL) was appointed for P.G. While at the Winnebago Mental Health
Facility, P.G. was examined by a physician who noted P.G. had been suffering
from memory issues for some time and had been unable to manage his finances or
daily needs. The physician observed that P.G. had been abusing alcohol, suffered
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from bipolar disorder, and had other medical and cardiac issues. He concluded
P.G. was suffering from severe dementia, severe cognitive impairment, and “gross
impairment of insight and judgment.” The physician determined that due to P.G.’s
impairments, he was eligible for guardianship and protective placement.
¶4 The GAL, concerned that P.G.’s “presentation” during her in-person
session with him did not match the physician’s description of P.G., recommended
an independent medical evaluation. Based upon P.G.’s objections to the petitions,
the GAL also requested that adversary counsel be appointed for P.G. The circuit
court granted both requests. Following a subsequent examination, psychologist
Michael Galli diagnosed P.G. with severe alcohol-related dementia, bipolar
disorder, and severe neurocognitive disorder. Galli concluded P.G. had moderate
to severe impairment in most areas of functioning, including in his memory,
reasoning and executive functioning. Galli further concluded that no
less-restrictive alternatives were appropriate and that P.G.’s limitations “are so
severe that he requires the services of a guardian.” Galli also recommended
protective placement in a secure setting with twenty-four-hour supervision.
¶5 The case proceeded to an evidentiary hearing in September 2019, at
which P.G., his daughter R.B., and Galli testified, amongst others. 1 Following the
evidentiary portion of the hearing, the GAL acknowledged struggling with her
recommendation because P.G. “presents really pretty well, very articulate.” The
GAL was ultimately persuaded by Galli’s medical opinion that the guardianships
were in P.G.’s best interests. She stated she did not believe P.G. required nursing
home placement and that the least restrictive environment consistent with his
1
The Honorable Thomas Cane presided over the evidentiary hearing.
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needs was “likely [twenty-four-hour] in-home services.” She acknowledged,
however, that type of placement might not be available in the region and that P.G.
might need to be placed in a more restrictive setting.
¶6 The circuit court orally granted the petitions at the conclusion of the
hearing. It was persuaded by the testimony regarding the “condition that [R.B.]
found her father in when he was on his own,” which “demonstrated the fact that he
could not take care of himself.”2 The court acknowledged P.G.’s case was
“unusual,” but it stated that it did not have “any problem” with ordering
guardianships and that “the requirements have been met” for both the
guardianships of the person and of the estate. Indeed, the court stated its most
difficult decision was “not the guardianship[s], it [was] the placement.”
¶7 Regarding placement, the social worker who testified at the
evidentiary hearing stated P.G. was in need of twenty-four-hour supervision.
Although she recommended returning P.G. to the Florence nursing home, she
stated that facility was unavailable to P.G. due to his failure to pay a bill. She
ultimately recommended a residential facility in Clark County. On
cross-examination by the GAL, the social worker acknowledged that a nursing
home would be an “over placement” for P.G. and that he “could probably be
provided services in a lesser restrictive facility.” She testified, however, that “we
2
R.B. had testified, among other things, that given P.G.’s medical conditions, he was a
danger to himself if he was not taking his medications, which R.B. had been getting filled for
him. She testified that P.G. had not done much on his own beyond brushing his teeth, taking a
shower, and going to the bathroom, adding: “I have been in the house, and the toilets are
disgusting. The mattress is soaking with urine. He has been sleeping on a shower curtain that I
found. The carpeting was saturated with urine in the bedroom.” She acknowledged he could do
some basic care but stated that, after P.G.’s wife commenced divorce proceedings, he barely
cooked food and had allowed garbage to pile up in his house. She further testified that P.G. had
never taken care of the family financial affairs and was incapable of doing so now.
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No. 2020AP966
don’t have those kinds of facilities in our area.” When considering placement, the
circuit court remarked that Clark County “may not be the right place for you,” but
the “reality is that there is just no other place at this time.” The court determined
that the Clark County facility was the least restrictive facility “at this time,” and it
emphasized that it expected the family and social workers to attempt to find a
more suitable placement.
¶8 Following the hearing, the circuit court entered a form guardianship
order determining that P.G. is incompetent due to a degenerative brain disorder.
The form order had all necessary boxes checked to indicate the court was ordering
guardianships of the person and of the estate. The form itself explicitly included
the required finding that “the individual’s need for assistance in decision-making
or communication is unable to be met effectively and less restrictively through
appropriate and reasonably available training, education, support services, health
care, assistive devices, or other means that the individual will accept.” See
generally WIS. STAT. § 54.10(3)(a)4. (2019-20).3 However, there was no box to
check, nor any check mark, next to that finding.
¶9 Pursuant to the circuit court’s incompetency determination and
guardianship order, the court issued letters of the guardianship of the person and of
the estate for P.G. The court also entered an order finding protective placement
was necessary and requesting that the County and P.G.’s family collaborate to find
“a less restrictive place for the ward,” with the placement to be reviewed in six
months’ time. P.G. now appeals.
3
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
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No. 2020AP966
DISCUSSION
¶10 We review a circuit court’s decisions to order guardianship and
protective placement using a mixed standard of review. We will not overturn a
circuit court’s factual findings unless they are clearly erroneous. Coston v.
Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998); see also WIS.
STAT. § 805.17(2). Whether the evidence satisfies the legal standards set forth in
the relevant statutes is a question of law, which we review de novo. Coston, 222
Wis. 2d at 23. To the extent the circuit court’s decision rests on the determination
of the ward’s best interests, that determination is reviewed for an erroneous
exercise of discretion. Anna S. v. Diana M., 2004 WI App 45, ¶7, 270 Wis. 2d
411, 678 N.W.2d 285.
I. Validity of the Guardianship Orders Under WIS. STAT. § 54.10(3)(a)4.
¶11 P.G. first argues the circuit court failed to make the required finding
under WIS. STAT. § 54.10(3)(a)4. when ordering guardianships of the person and
of the estate. Specifically, subsec. (3)(a)4. requires the court to find, by clear and
convincing evidence, that
[t]he individual’s need for assistance in decision making or
communication is unable to be met effectively and less
restrictively through appropriate and reasonably available
training, education, support services, health care, assistive
devices, a supported decision-making agreement under
ch. 52, or other means that the individual will accept.
The phrase “less restrictively” appears to broadly refer to the effect of a
guardianship in circumscribing the ward’s personal liberty and exercise of rights.
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No. 2020AP966
See WIS. STAT. § 54.01(18); see also Mills v. Neubert, 250 Wis. 401, 404-05, 27
N.W.2d 375 (1947).4
¶12 P.G. essentially argues the guardianships were unnecessary because
he was able to communicate effectively and the County failed to demonstrate that
he had refused any services the County offered. P.G. highlights certain testimony
that he was generally cooperative with people who attempted to provide him with
services and information. P.G. argues that, under these circumstances, it was
necessary for the County to present evidence “that services had been offered but
rejected by P.G.” He further argues that because the guardianship orders were
invalid, the protective placement order was also invalid. See WIS. STAT.
§ 55.08(1)(b) (requiring a prior determination of incompetency for protective
placement).
¶13 Consistent with P.G.’s argument, we assume without deciding that
the phrase “less restrictively” under WIS. STAT. § 54.10(3)(a)4. has the same or a
similar meaning as the phrase “least restrictive” under WIS. STAT. § 54.01(18).
We have previously treated the determination of whether a particular level of
restrictiveness is necessary as a question of fact, which we review using the clearly
erroneous standard. Cf. Fond du Lac Cnty. v. J.G.S., Jr., 159 Wis. 2d 685, 687,
465 N.W.2d 227 (Ct. App. 1990) (applying clearly erroneous standard to a finding
of the “least restrictive placement” under WIS. STAT. ch. 55).
4
P.G. does not dispute that the other elements necessary to establish the guardianships
were sufficiently established; namely, that he was of the proper age, impaired, and unable to
effectively receive and evaluate information or to make and communicate decisions related to the
essential requirements for his health and safety or the management of his property and affairs.
See WIS. STAT. § 54.10(3)(a)1.-3.
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No. 2020AP966
¶14 P.G. argues that, in this instance, whether his needs could be met
through less restrictive means than a guardianship should be regarded as a
question of law. P.G. reaches this conclusion because, in his view, the circuit
court “did not make the finding required under [WIS. STAT.] § 54.10(3)(a)4.”
Accordingly, P.G. contends the issue is whether the court applied the correct legal
standard when it found him incompetent. Whether a circuit court applied the
correct legal standard is a question of law that we review de novo. Robin K. v.
Lamanda M., 2006 WI 68, ¶12, 291 Wis. 2d 333, 718 N.W.2d 38.
¶15 We reject P.G.’s assertion that the circuit court failed to make the
requisite finding under WIS. STAT. § 54.10(3)(a)4. The court specifically found at
the conclusion of the evidentiary hearing that all requirements necessary for the
guardianships had been established. As even P.G. acknowledges, the court’s form
order found the guardianships were necessary and included language identical to
that found in subsec. (3)(a)4. P.G. compares the situation to that in Darryl T.-H.
v. Margaret H., 2000 WI 42, 234 Wis. 2d 606, 610 N.W.2d 475, in which our
supreme court determined that remand was appropriate when the circuit court
failed to consider all relevant statutory factors concerning the child’s best interests
in a termination of parental rights case. To the contrary, the circuit court here
clearly made the necessary finding of ultimate fact on the required element.5
5
P.G. fails to draw a distinction between a circuit court’s findings of ultimate fact versus
its findings of historical or basic fact. See Universal Foundry Co. v. DILHR, 82 Wis. 2d 479,
486, 263 N.W.2d 172 (1978). While the court here can perhaps be faulted for not setting forth a
more detailed recitation of the historical or basic facts supporting its conclusion that P.G.’s needs
could not be met by means less restrictive than the guardianships, it cannot be argued that the
court failed to make that determination in the first instance.
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No. 2020AP966
¶16 As a result, we apply the “clearly erroneous” standard of review to
the court’s determination of this finding. Under that standard, we will affirm the
circuit court’s finding as long as the evidence would permit a reasonable person to
make the same finding. Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 WI 46,
¶12, 290 Wis. 2d 264, 714 N.W.2d 530. Moreover, we search the record not for
evidence opposing the court’s decision, but for evidence supporting it. Id.¶17 We conclude there was sufficient evidence presented at trial to
support the circuit court’s determination that P.G.’s needs could not be met
effectively by less restrictive means than the guardianships. Both Dr. Galli and
P.G.’s social worker specifically testified that P.G. required twenty-four-hour
supervision. Galli opined in his report, which was introduced as an exhibit at the
evidentiary hearing, that there were no less restrictive interventions that would
eliminate the need for a guardianship, explaining that P.G.’s “limitations are so
severe that he requires the services of a guardian.”6
¶18 Galli elaborated at trial that P.G. did not resist accepting treatment
and there were “a lot of services that he could get with help from others.” But
Galli testified that P.G. could not “recognize the need for them or organize them
on his own.” Indeed, there was evidence that P.G. insisted he did not need help,
believed he could live independently, and did not understand his limitations.
¶19 Additionally, although P.G. faults the County for failing to provide
services for him that could have obviated the need for guardianship, there was
6
Alternatives to guardianship identified on the form included training, education,
support services, assistive devices, advanced planning (e.g., powers of attorney, trust, etc.), or a
representative payee. Galli determined that none of these alternatives were viable options for
P.G.
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No. 2020AP966
testimony establishing that many of those services were not available to P.G. At
the time of the hearing, P.G. was awaiting a determination on his eligibility for
Medicaid. P.G.’s social worker testified that although Florence County did not
provide services like home cleaning, meals and counseling, such programs might
be available through the Aging Disability Resource Center. But because P.G. had
not yet met the Center’s eligibility requirements, those services were not available
to him, making an in-home situation untenable.
¶20 In sum, the evidence was sufficient to support the circuit court’s
finding under WIS. STAT. § 54.10(3)(a)4. that P.G.’s needs could not be effectively
met through less restrictive means.
II. Validity of the Guardianship of the Estate Under WIS. STAT. § 54.46(1)(a)2.
¶21 Alternatively, P.G. argues that the circuit court should have
dismissed the petition for a guardianship of the estate under WIS. STAT.
§ 54.46(1)(a)2. Dismissal is warranted under subd. 2. if “[a]dvance planning by
the ward, as specified in s. 54.10(3)(c)3., renders guardianship unnecessary.”
WISCONSIN STAT. § 54.10(3)(c)3., in turn, requires a circuit court to consider, as
part of the guardianship determination, “[w]hether the proposed ward has engaged
in any advance planning for financial and health care decision making that would
avoid guardianship, including by executing a durable power of attorney under
ch. 244, a power of attorney for health care, … a trust, or a jointly held account.”
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¶22 P.G. executed a financial durable power of attorney in Michigan in
2003.7 The appointed agents were P.G.’s wife and his daughter, but only P.G.’s
wife signed the “acceptance of duties of agent” form at the end of the power of
attorney. The circuit court revoked the financial durable power of attorney on the
basis that it was “void due to divorce action filed between the principal and
proposed agent.” P.G. argues the divorce was no bar to P.G.’s wife acting as agent
and, in any event, the power of attorney named P.G.’s daughter as an alternate
agent.
¶23 We conclude that the financial durable power of attorney did not
render the guardianship of the estate unnecessary.8 As the GAL notes, the mere
filing of the divorce petition terminated his wife’s authority to act as his agent,
regardless of whether the divorce was finalized. See WIS. STAT. § 244.10(2)(c).
Because R.B. did not sign the acceptance, it is unclear whether there is an agent
available to act for P.G. under the financial durable power of attorney. Moreover,
R.B.’s testimony at the evidentiary hearing can be reasonably construed as an
assertion that she did not want to act on P.G.’s behalf for both health and financial
issues.
P.G.’s financial durable power of attorney, as well as his durable power of attorney for
7
health care, formed the basis for a pretrial motion to dismiss the guardianship and protective
placement petitions. The circuit court denied that motion. On appeal, P.G. does not challenge the
court’s determination that the durable power of attorney for health care did not render a
guardianship of the person unnecessary because it did not permit the health care agent to admit
P.G. to a nursing home or community-based residential facility. As part of the guardianship and
placement proceedings, the court ordered the revocation of the durable powers of attorney P.G.
had granted.
8
No case law exists articulating what the standard of review should be for a circuit
court’s determination under WIS. STAT. § 54.46(1)(a)2. that advance planning does not render the
guardianship unnecessary. Although we believe the matter is best reviewed as either a factual
finding or discretionary determination, in this case it makes no difference which standard of
review we apply, as we reject P.G.’s argument under even a de novo standard of review.
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No. 2020AP966
¶24 P.G. cites no evidence that R.B. was willing to accept the
responsibilities of an agent in his wife’s stead. Rather, P.G. notes that the
financial durable power of attorney permitted an agent to appoint another person
as a substitute agent to succeed him or her. It is not clear that this provision solves
the problem, though, as the plain language of the power of attorney presumes that
there exists a valid agent to appoint a substitute or successor. Again, neither
P.G.’s wife nor his daughter appear to have an agency relationship with P.G. at
this juncture.
¶25 In any event, the explicit terms of the financial durable power of
attorney show that it did not make the guardianship of the estate unnecessary.
Unlike the guardianship, it was “subject to revocation by [P.G.] at anytime” upon
written notice to the agent. Moreover, the document contemplated that P.G. would
have some continuing authority over his financial affairs, as it stated that “[a]ny
disagreement between my Agent and myself does not constitute a revocation.”
Finally, the document provided that any “subsequent disability, incapacity or
incompetency of the principal” would have no effect on the power of attorney—
including, presumably, P.G.’s authority to revoke it. Under these circumstances,
dismissal of the guardianship of the estate petition was not warranted under WIS.
STAT. § 54.46(1)(a)2.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.
12