*1 zoning they change, are of the owners of the those property. property affected here are owners according Moreover, parties not action. allegations they petitioned complaint, for Obviously object change they annexation. not to a do zoning. exception not come within the fourth
This does allegation property there is no fund or because taxpayers held in and citizens which threat- trust squandered. ened to be diverted or In the absence of exception trust, such fund or the fourth does cover prop- revenue deficits. We conclude that the trial court erly restraining dissolved order case. The general applies, rule of the Rose Case because none of exceptions do.
By the Court. —Order affirmed. Guardianship Appellant, re Lausier, Pescinski : Pescinski, Respondent.
v. Argued February 21, February 25, No. 668. 1975. Decided 1975. Opinion March 1975. filed (Also reported 180.) in 226 N. W. 2d *2 Day, J., dissents. argument appellant
For there was brief oral by Eugene A. Kershek of Milwaukee. Stephen respondent
For there was a brief guardian O’Meara, O’Meara, litem, ad and O’Meara & argument by Stephen Bend, all and oral O’Meara. of West power J. Does have C. Wilkie, kidney performed an to remove order to be guardianship ward, under of need person, it to the dire transfer a sister where has but no consent of the transfer established where guardian given by litem, ad been been shown? nor benefit to ward has presented appeal here. The trial That the issue agree. that it did not have that and we court held Lausier, appellant, on her own Janice Pescinski person her appointed petition, was respondent, In Richard Pescinski. incompetent and committed declared was Richard was Winnebago Hospital. He has been a committed State patient mental date, since that classified aas schizo- phrenic, chronic, type. catatonic January 31, 1974,
On peti- Janice Pescinski Lausier permission tioned for H. M. Dr. Kauffman to con- duct tests determine whether Richard Pescinski was suitable donor for sister, kidneys Elaine Jeske. Elaine had both surgically in 1970, suffering because she removed diagnosed kidney glomerulone- failure as chronic phritis. life, put order to her sustain she was on a dialysis machine, kidney. as an artificial functions Elaine, of the deterioration of petition Because con- tended that a Subsequent was needed. completed establishing tests were that Richard was a donor, hearing was then suitable held on the *3 subject permission granted of whether to guardian perform transplant. the The litem would ad give the transplant not consent and the give that it did power held not have the consent for operation. the hearing thirty-eight
At the time of the Elaine was and thirty-nine. her pro- brother Richard was Evidence was hearing duced at that the other members of family possible Pescinski had been out ruled as donors age aged on the of either father, basis or health. The aged seventy, mother, and the sixty-seven, were elimi- possible by because, nated as donors Dr. Kauffman principle, perform a matter of opera- he not sixty. tion on donor over A similar rationale was applied Kauffman all Dr. as to of the six minor Elaine, concluding children the doctor that he “would kidneys” personally not use their aas matter of his sister, “own moral conviction.” Lausier, Mrs. Jeske’s Mrs. excluded as a donor because she was has An- diabetes. Ralph Pescinski, other testified that he was years years forty-three old, twenty had been married
7 ten at home. children, had nine of whom remained donor dairy He not to be a farmer care did nobody to farm there take over his because would be duty family felt to refuse. and he he had a his He that he had a disorder further testified stomach required special rupture on diet and had Capati He at Neillsville left side. had been see Dr. get told he involved and Clinic, who him should family that come first. suffering that Richard from
The showed was schizophrenia and that while he was type, —catatonic there marked in- contact environment with his the medical Hoffman, difference behavior. in his Dr. Home, Bend, at Samaritan director West Good Wisconsin, layman’s terms Richard’s that testified flight reality. He estimated mental was a disease age capacity to No evidence mental twelve. Richard’s that in the record Richard consented indicates question consent, transplant. there no that that Absent power ap- it the trial court’s conclusion prove must be sustained. guardian person
“A care has ward’s health, person education, look the latter’s and must act, “loyally at support.” all, must absolutely of his ward.” There in the best interests interests of ward will be no evidence here transplant. by the served opera- to authorize the own
As far court’s *4 clearly in tion, are that the law is satisfied Wisconsin we given contrary. statutory authority There no is to county authorize a or the court living surgical procedure person. a other We concept judgment” adopt the of “substituted decline Kentucky approved specifically the Court which was 1 Ward, p. 60, 2d, and Guardian sec. Jur. 68. 39 Am. 2 Guardianship 24, 32, (1963), Nelson 21 Wis. 2d 123 W. 2d N. of (6) (b), Stats. 880.19 505. sec. Cf. Appeals
of case, in Strunk Strunk.3 the v. In Kentucky power equity court held a of had court the permit incompetent the removal of an upon petition ward of the state the of committee who Apparently also mother. committee in Kentucky Kentucky like a in this state. Appeals Court of authorized based on application judgment. of the doctrine of substituted However, the court held that also neither the committee county nor the the power to authorize the of operation, absence the life jeopardy only ward was Appeals of Court — power. had the In the instant case the court had power no question to authorize the procedure, supreme by using whether this court can the doctrine of judgment. substituted dissenting opinion
theAs points in Strunk v. Strunk judgment” out, nothing “substituted more than an application equity speak maxim that will for one speak who cannot for Historically, himself. the sub- judgment gifts doctrine stituted was used allow property incompetent. an applied If it literally, court, change trial court, allow designation policy on life insurance or make an election requirement widow, without authorizing contrary statute acts prior these decisions of this court.4
We conclude that the doctrine adopted should in this state. therefore,
We,
must affirm the lower court’s decision
it
power
approve
that was without
operation,
we
further decide that
there is no such
in this
court. An
particularly
have
his own
protected. Certainly
advantage
interests
taken of him.
absence
real
part,
consent on his
3 (Ky. 1969),
Steenwyck
(1884),
v.
Washburn
Wis.
By the Court. —Order affirmed. No costs this appeal.
Day, (dissenting). I the decision J. would reverse majority case. The that in the this of the court holds incompetent absence of a of “benefit” proof part, this case or of consent the trial court on his kidney authority and this court lack to authorize a trans- plant operation performed to be on him to the life save disagree. I of his sister. equity
I think the court a court of have au- does thority permit re- quested petition in the of Richard of agree reasoning I with the of Pescinski. Court Appeals Kentucky of state wherein that court said: specific question upon appeal “The involved is: equity kidney permit Does a court have the to ward of incompetent
to be removed from an state upon petition committee, mother, of his who also his being transplanted purpose body into the for the dying of a fatal disease? We who is (Ky. opinion it does.” Strunk v. Strunk are of 1969), 445 35 A. L. R. 3d 683. S. 2dW. of a That case authorization involved twenty-eight- twenty-seven-year-old to his year-old find, The court in that case did based brother. psychiatrist, the in- of a that while on the age six, it competent the mental would be of keep him his brother alive so his brother regard occasion; pretty I him on this as could visit soup to base a decision whether or on which thin permitted to In the live. the donee is happily brother us, before undoubtedly illness, mental he would from his recover *6 happy transplant one of his be to learn that kidneys at would to his saved her This least sister life. not response transplant be a normal and hence the is without him. guardian
The in this ad litem for the interposed strong objection transplant from has sister, Richard at the time Peseinski who thirty-nine-year-old of six determination, a mother who, on Feb- minor children were informed and we ruary attempting arguments, 24th at the time of in oral through “washing” bi-weekly her to live on a blood dialysis kidney machine has now deteriorated point of confinement in a wheelchair. were advised We kidney transplant quite that without a for her is death hand, in- The on the other imminent. good testimony competent, in The medical is is health. kidneys that the removal of one be of of his would normally to him that he function minimal risk and kidney life, on one for the rest of his natural do The thousands of others similar circumstances. guardian argues strenuously per- ad litem that for tous transplant bring mit back memories Germany camp in Dachau concentration Nazi medical and experiments unwilling subjects, many died of whom horribly analogy— or maimed. I fail to see the were by experiment conducted mad doctors but this is not surgical accepted ne- procedure well-known incompetent’s this case to the life of the cessitated in save transplant by authorized, sister. Such a would be group operating doctors behind barbed-wire stockade hearing only full in an but after a American court of expressed by To the concerns law. avoid litem, there are certain definite ad standards which could imposed. strong showing all, First of made that without recipient proposed donee or stands to suffer death. This certainly Secondly, the evidence here. that reasonable kidney acquire steps try have taken been attempt that such the record is clear other sources and the donee of the fact that was made here. Because up certain chemical children, built has had she has six body foreign receipt into her tissue resistance to only from one by a can be overcome her blood a brother close to such as sister. acquiring a kid- impracticality of showed ney or her sister. No from either her other brother her been found since from a cadaver has suitable kidneys The next were removed 1970. incompetent proposed donor
should be made *7 by proposed closely donee, such blood related is the sister, which of is or course here. -as a brother donor, competent, the if Showing made that the probably normal ties consent because would most specifically . family. found “. the trial court . Here, inescapable that the appear be would the conclusion con- proposed incompetent would so donor] ward [the 1 granted.” be authorization and that such should sent incompe- proposed showing be that Another good that here. health and was shown in tent donor is risk to minimal is one of lastly, that the And normally on donor could function and that the the donor operation. medical testi- kidney following The such one undergo that the donor would mony all to effect is normally able to function be risk minimal would person fact, that a kidney. is on one normal tenth of one little one on function can kidney. expressed that institu- guidelines the fear these
With merely mentally become storehouses ill will for tions completely people the outside parts for spare however, concluded, an that such authoriza court The trial property away incompetent’s giving analogous be tion authority to him the court had no “benefit” there was and since act.
unjustified. agree I the trial with that brother here competent probability were in all he would willing to consent to save his sister’s life. For period him it would be short of discomfort ability which would not enjoy affect either life longevity. or his majority opinion
The says there is no con- by incompetent. sent Hoffman, Dr. P. William C. medical director of the Samaritan Home where the Good incompetent patient, testified one with incompetent mental condition of the has no inter- lucid reasoning vals and that completely impaired making incompetent decisions. The doctor testified the would not be proceedings aware of what the involved and incompetent testified the days is “insane seven a week.” From such a record it is difficult to see how one could get meaningful ever “consent” from the in this case. majority opinion would forever condemn the in-
competent always to be a receiver, taker, but never giver. holding For only things those financially physically incompetent may court, be done he doing is forever excluded from thing, the decent thing. the charitable The British courts have not so held. Two British cases cited in Strunk permitted the estate of an provide *8 pension faithful servant in one instance and in indigent help another to brother —this the device judgment” known as “substituted where the court effect does for the what it is he sure do himself he act. approach This gives the benefit doubt, endows qualities him with finest humanity, assumes goodness of his nature assuming instead of op- posite. equities taking this case favor the action which
may save this mother’s life.