IN the MATTER OF the GUARDIANSHIP AND PROTECTIVE PLACEMENT OF MURIEL K., alleged incompetent: Jeffrey KNIGHT and Norris Knight, Appellants-Petitioners, v. MILWAUKEE COUNTY and Muriel K., Respondents.
No. 00-0929
Supreme Court of Wisconsin
March 19, 2002
Oral argument December 3, 2001.
2002 WI 27 | 246 Wis. 2d 691 | 640 N.W.2d 773
For the respondent, Milwaukee County, there was a brief (in the court of appeals) by Mary Ellen Poulos, principal assistant corporation counsel.
For the respondent, Muriel K., there were briefs by Robert B. Peregrine and Peregrine & Roth, S.C., Milwaukee, and Pamela D. Crawford, Franklin, and oral argument by Robert B. Peregrine.
For Steven C. Underwood, guardian of the person, there was a brief by Brian W. McGrath, John F. Callan, and Foley & Lardner, Milwaukee, and oral argument by Brian W. McGrath.
An amicus curiae brief was filed by William P. Donaldson, Madison, on behalf of the Wisconsin Board on Aging and Long Term Care.
¶ 1. ANN WALSH BRADLEY, J. 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
(1999-2000)2
I
¶ 2. In June 1999, with the assistance of Attorney Robert Moodie, Muriel K. executed a durable power of attorney pursuant to
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
¶ 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 “stuporous, 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
¶ 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.
¶ 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
¶ 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
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-
tent 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). Because the Knights were neither Muriel K.‘s guardian ad litem nor the guardians of her estate, the court dismissed their appeal.
II
¶ 14. The question before us is whether the Knights, as Muriel K.‘s named agents under her health care and durable powers of attorney, have standing to appeal. The parties agree that
¶ 15. We begin our analysis by examining
(1) APPEAL IS TO THE COURT OF APPEALS. Any person aggrieved by any appealable order or judgment of the court assigned to exercise probate jurisdiction may appeal or take writ of error therefrom to the court of appeals.
. . . .
(4) WHO MAY APPEAL ON BEHALF OF MINOR OR INCOMPETENT. In all cases the appeal on behalf
of any minor or incompetent person may be taken and prosecuted by the guardian of the minor‘s or incompetent‘s estate or by a guardian ad litem.
¶ 16. We note that there is no real dispute over the question of whether Muriel K. is a person aggrieved under
¶ 17. Muriel K. has a legally recognized interest in the subject matter of her own guardianship and protective placement. In addition, she may be adversely affected by the order in this case for any number of reasons, not the least of which is the revocation of her powers of attorney. Thus, because Muriel K. is a person aggrieved, the question, framed broadly, becomes: who may speak for Muriel K. under
¶ 18. The guardian ad litem, adversary counsel, and Underwood (“respondents”4) argue, in agreement with the court of appeals, that the Knights may not appeal under
¶ 19. The Knights acknowledge that
¶ 20. We disagree with the court of appeals’ interpretation that
¶ 21. Section
¶ 22. Contrary to the court of appeals’ rationale, the respondents acknowledge that authority to speak for an incompetent individual exists under
¶ 23. Unlike the language of
¶ 25. The fundamentals of agency law include the concept that the agent is a substitute for the principal. See 3 Am. Jur. 2d Agency § 1 (1986). Stated another way, the agent “acts for,” “in the place of,” and “instead of” the principal. Id. “It is, accordingly, a consequence of the [agency] relationship that whatever an agent does in the lawful prosecution of the transaction entrusted to him is the act of the principal.” Id. at § 2. Adversary counsel and the guardian ad litem in their joint brief cite to these fundamental principles of agency law. Whatever an agent lawfully does is the act of the principal.
¶ 26. Building upon these basic principles of agency law, Wisconsin has adopted both the durable power of attorney and the power of attorney for health care as tools in planning for incapacity. See Production Credit Ass‘n v. Kehl, 148 Wis. 2d 225, 229, 434 N.W.2d 816 (Ct. App. 1988). We consider each in turn.
¶ 27. In creating
¶ 28. Because
¶ 29. According to its drafters, the central purpose of the Act is “to assist persons interested in establishing non-court regimes for the management of
¶ 30. The Act recognizes, however, that agencies under durable powers may coexist with provisions for guardians or conservators. Unif. Durable Power of Attorney Act, § 3 cmt., 8A U.L.A. 322. To that end, the Act provides for the nomination of a guardian in the durable power document and discourages courts from appointing a guardian contrary to the individual‘s clearly expressed wishes. Section
¶ 31. The respondents contend in their briefs that had Muriel K. wished to ensure that the Knights would oversee her personal well being and financial affairs, she should have availed herself of the guardian nomination procedure under
¶ 32. At oral argument Muriel K.‘s adversary counsel asserted that even if Muriel had nominated the Knights as guardians, they should have been removed for good cause pursuant to
¶ 33. The durable power of attorney form statute adopted by our legislature,
LEGAL ACTIONS: My agent may retain attorneys on my behalf; appear for me in all actions and proceedings to which I may be a party; commence actions and proceedings in my name; and sign in my name all documents or pleadings of every description.
The durable power of attorney document executed by Muriel K. contains a similar clause granting the power:
To commence, prosecute, enforce, defend, answer, oppose or abandon any action, suit or other legal proceeding relating to any matter in which I am or may hereafter be interested or concerned; and also, in the discretion of [my agent], to compromise, settle, refer to arbitration, or submit to judgment any such action or proceeding.
¶ 34. It appears that other state appellate courts have yet to squarely address the precise question before us. However, our canvas of other jurisdictions indicates that at least two have assumed that under the Act, durable power of attorney agents have standing to appeal court orders appointing guardians. See Smith, 684 N.E.2d at 616; In re Sylvester, 598 A.2d 76, 78 (Pa. Super. Ct. 1991).
¶ 35. In Sylvester, 598 A.2d at 78, a principal granted a power of attorney to two agents. Shortly thereafter, the County of Delaware Services petitioned for the appointment of a temporary guardian. Id. The petition contained a medical report and a variety of allegations against the agents. Id. The agents were accused of mistreating the principal and engaging in other improper activity. Id. at 78-79.
¶ 36. After the Pennsylvania orphans’ court appointed a temporary guardian, the County petitioned the court to adjudicate the principal incompetent and appoint a permanent guardian. Sylvester, 598 A.2d at 78-79. The court “summarily appointed” an independent permanent guardian, and dismissed the agents’ exception to the appointment. Id. at 79. The agents appealed, no one disputed their standing to appeal, and the Superior Court reversed, determining that the orphans’ court erred by ignoring the statutory requirement that nominated agents be appointed guardians unless there is good cause for disqualification. Id. at 77.
¶ 37. Similar facts set the backdrop in Smith, where a principal appointed two long-time friends and business associates as his agents under a durable power of attorney and nominated them as guardians. 684 N.E.2d at 614-15. The principal‘s wife and daughter subsequently filed a petition for guardianship, alleging improprieties on the part of one of the agents and describing a history of distrust between the principal‘s family and one of the business associates. Id. at 615. The agents objected and filed their own petition. Id.
¶ 38. After a hearing with limited participation by the agents, the probate court appointed the principal‘s daughter and a family friend as permanent guardians. Smith, 684 N.E.2d at 615. The agents appealed, and with no one disputing the agents’ standing to appeal, the Massachusetts Appeals Court reversed, concluding that under its version of the Act, the probate court had failed to make appointments in accordance with the principal‘s nomination without finding good cause to disqualify them. Id. at 616.
¶ 39. Thus, both the Pennsylvania court in Sylvester and the Massachusetts court in Smith allowed agents under a durable power of attorney to appeal a guardianship order. We recognize that these cases do not squarely address the question of standing, or for that matter, discuss statutes that confer standing. Nonetheless, the cases illustrate that a determination that the Knights have standing to appeal would seem to yield consistency with other states’ interpretations of the Act.
¶ 40. Subsequent to its adoption of the Act, our legislature also provided that the citizens of Wisconsin may execute a power of attorney for health care. See 1989 Wis. Act 200;
¶ 41. Although the health care power of attorney and the durable power of attorney pertain to different decision-making powers, they are both intended to ensure that the wishes of a principal made while competent are effectuated in the event of the individual‘s incapacity. Thus, for purposes of the question before us, both types of powers serve the same function. Indeed, it is the type of decision-making powers granted under a power of attorney for health care that most highlight the gravity of what is ultimately at stake for Muriel K. in this litigation. In addition, both are based upon the same fundamental principles of agency. For all of these reasons, we view the two powers as resting on equal footing for the purposes of our standing analysis.
¶ 42. In short,
¶ 43. Though the respondents rely on In re Guardianship of McLaughlin, 101 Wis. 672, 78 N.W. 144 (1899), and Sanborn v. Carpenter, 140 Wis. 572, 123 N.W. 144 (1909), both cases are inapposite given our determination that the Knights have standing because they act in place of Muriel K. under
¶ 44. Similarly, in Sanborn, the sister of a proposed ward appealed a circuit court decision reversing the appointment of a guardian. 140 Wis. at 572. This court dismissed the case, concluding that her personal rights were not involved and that she was not a “person aggrieved.” Id. at 572, 574. Here, because Muriel K. is the person aggrieved, and the Knights’ standing derives from
¶ 45. We recognize of course that it is not, in reality, Muriel K. who is personally appealing, but this simply reflects the nature of a power of attorney. The Knights, in effect, substitute for Muriel K. for purposes of
¶ 46. Our interpretation of
¶ 47. In State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 362 N.W.2d 104 (1985), the court determined that the constitution requires that individuals who are protectively placed under
¶ 48. Recently, this court underscored the importance of judicial review of proceedings affecting incapacitated individuals in County of Dunn v. Goldie H., 2001 WI 102, 245 Wis. 2d 538, 629 N.W.2d 189. In Goldie H., the court determined that the periodic judicial review required under Watts must include a hearing and fact findings demonstrating the need for continued placement. Goldie H., 2001 WI 102, ¶ 6. Acknowledging that the safeguards provided by judicial review require substantial resources, the court reasoned as follows:
Taking a few moments to protect the rights of our most vulnerable citizens is not an unacceptable cost to society. It is an expression of our humanity. It is a commitment that no person will be warehoused and forgotten by the legal system.
Id. at ¶ 35.
¶ 49. Although Goldie H. and Watts involved ongoing circuit court level review, their rationales are readily applicable to the question of appellate standing. The combined thrust of the cases is the notion that when individuals are no longer able personally to ensure that their rights and interests are protected, mechanisms such as judicial review are necessary to safeguard those rights and interests.
¶ 50. The respondents maintain, however, that Muriel K.‘s rights and interests are sufficiently protected by the guardian ad litem, the guardian of the estate, and adversary counsel. We disagree.
¶ 51. As the facts of this case illustrate, standing to appeal in the guardian ad litem, the guardian of the estate, and adversary counsel will sometimes prove inadequate. The guardian ad litem, guardian of the estate, and adversary counsel will not, in all cases, choose to advocate for the ward‘s directives made while competent.
¶ 52. The guardian ad litem is charged with advocating for the ward‘s “best interests.”
¶ 53. The best interests of a ward and the ward‘s wishes expressed while competent may overlap. See Spahn v. Eisenberg, 210 Wis. 2d 557, 565, 563 N.W.2d 485 (1997). Ultimately, however, “best interests” is a standard that is not necessarily coextensive with what an individual has chosen or would choose were she competent to do so. See Lenz, 167 Wis. 2d at 81. Here, neither the guardian ad litem nor the guardian of Muriel K.‘s estate viewed Muriel K.‘s desires as expressed in her health care and durable powers of attorney as indicative of her best interests.
¶ 54. Adversary counsel, unlike the guardian ad litem and the guardian of the estate, is not charged with representing the best interests of the ward. Rather, as the court of appeals correctly noted, adversary counsel is “duty bound to represent his or her client‘s wishes.” Apparently, however, in this case, after seeing Muriel K. on only one occasion in mid-February 2000, adversary counsel concluded that Muriel K.‘s wishes included a revocation of her health care and durable powers of attorney and the appointment of Underwood as guardian of her person.
¶ 55. In short, the respondents’ analysis of standing pursuant to
IV
¶ 56. In sum, we conclude that the Knights, as the agents Muriel K. named in her health care and durable power of attorney documents, have standing to appeal under
By the Court.----The decision of the court of appeals is reversed and the cause remanded to the court of appeals.
¶ 57. DIANE S. SYKES, J. (dissenting). The majority concludes that Muriel K. is a “person aggrieved” by the guardianship order, and that the Knights, as Muriel K.‘s agents under her health care and durable powers of attorney, have standing to appeal on her behalf under
¶ 59. As the subject of the guardianship petition and order, Muriel K. unquestionably qualifies as a “person aggrieved” for purposes of standing to appeal under
¶ 60. Despite this rather straightforward and conclusive language (“in all cases“), the majority reads the statute as nonexclusive, leaving open the possibility that in some cases someone other than the guardian of the estate or the guardian ad litem may appeal on behalf of a minor or incompetent under
Sec.[tion] 4031, Stats. 1898, provides that ‘the appeal of any minor may be taken in and prosecuted in the name of the general guardian of such minor or by a guardian ad litem appointed for that purpose.’ No reason appears to us why this court should enlarge or diminish this statute. It must be deemed exclusive. While the duty is not upon this court to find reasons for plain legislation, we may remark that it is of primary importance that the proceedings of county courts, with the important property interests placed in their care, should not be interrupted by unwarranted appeals, nor the rights of minors therein jeopardized, and their estates burdened with expense, at the discretion of people having no authority to represent them, and who in many cases may be antagonistic to their interests. Compliance with the statute is easy, and no doubt can be entertained at any time county courts will certify to the qualifications of some proper person to care for the minors’ interests, by conferring upon him an appointment as guardian ad litem when the occasion demands.
McLaughlin, 101 Wis. at 674 (emphasis added).
¶ 62. Here, the Knights seek to appeal on behalf of Muriel K., just as the uncle in McLaughlin sought to
¶ 63. Even assuming the majority has correctly interpreted the statute,1 its conclusion that the Knights may appeal on behalf of Muriel K. remains flawed. The Knights’ authority to act on Muriel K.‘s behalf as her health care and durable power of attorney agents is statutorily subordinate to the authority of the court-appointed fiduciaries, and does not survive the appointment of a guardian unless the circuit court says so.
¶ 64. Here, the circuit court specifically ordered the health care and durable powers of attorney revoked, terminating any and all authority the Knights had to act as Muriel K.‘s agents, including, necessarily, any authority to prosecute an appeal on her behalf. Accordingly, while Muriel K. has standing to appeal the guardianship order, and one of her court-appointed fiduciaries may do so on her behalf, the Knights may not, because their agency under the health care and durable powers of attorney no longer exists.
¶ 65. Health care and durable powers of attorney are governed by statute, and the legislature has set
¶ 66.
If a court under
s. 880.33 determines that an individual who is a principal is incompetent or makes a finding of limited incompetency unders. 880.33(3) and appoints a guardian for the individual, the power of attorney for health care executed under this chapter by the principal is revoked and the power of attorney for health care instrument is invalid, unless the court finds that the power of attorney for health care and power of attorney for health care instrument should remain in effect. If the court makes this finding, the guardian for the individual may not make health care decisions for the ward that may be made by the health care agent, unless the guardian is the health care agent.
¶ 67. Similarly, the Uniform Durable Power of Attorney Act,
(3) RELATION OF AGENT TO COURT-APPOINTED FIDUCIARY. (a) If, following execution of a durable power of attorney, a court of the principal‘s domicile appoints a conservator, guardian of the estate, or other fiduciary charged with the management of all
of the principal‘s property or all of his or her property except specified exclusions, the agent is accountable to the fiduciary as well as to the principal. Unless the court finds that the durable power of attorney should remain in effect, the fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated.
¶ 68. To avoid a conflict between an agent and a court-appointed guardian, the Act allows a principal to nominate a guardian in a durable power of attorney, and requires the appointment of the nominated guardian, with limited exceptions:
A principal may nominate, by a durable power of attorney, the conservator, guardian of his or her estate, or guardian of his or her person for consideration by the court if protective proceedings for the principal‘s person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal‘s most recent nomination in a durable power of attorney except for good cause or disqualification.
¶ 69. The statutory scheme is therefore very clear: individuals may nominate agents to act on their behalf in the event they are disabled or incapacitated. Those agents are empowered to act for the principal pursuant to the advance directive if disability or incapacity occurs, in the absence of and without having to initiate formal guardianship proceedings. But if a formal guardianship proceeding is commenced and a guardian appointed, any agency established by an advance directive is automatically revoked or revocable by the guardian, unless the court orders otherwise. The court-appointed guardian thereafter speaks and acts for
¶ 70. The majority opinion upsets this statutory hierarchy, and confers standing to appeal on agents whose power to act for the principal has been nullified. There is no authority for this conclusion, and the majority essentially admits as much, relying instead on the notion that the legislature must have assumed that agents would have the authority to appeal because the Act allows delegation of the power to litigate. Majority op. at ¶ 33. But the power to litigate, if indeed conferred by a durable power of attorney, is only good as long as the document remains in effect. The majority does not explain how it independently survives the revocation of the power of attorney.
¶ 71. The majority also relies on two cases from other jurisdictions, but acknowledges that neither addressed the standing issue.2 Majority op. at ¶ 39. Nevertheless, the majority pronounces its conclusion “consisten[t] with other states’ interpretations of the Act.” Id. It is hard to understand how one court‘s conclusion can be consistent with another‘s if the other did not even address the same issue.
¶ 72. Muriel K. did not nominate the Knights as her guardians, although she could have done so in her durable power of attorney and the circuit court would have been required to appoint them absent a showing of good cause or disqualification. Whether there would
¶ 73. The law, therefore, no longer recognizes the Knights as agents for Muriel K., and they have no power or standing to speak or act for her in a representational capacity at all. They could not, under these circumstances, purport to make financial or medical decisions for her under either the health care or durable power of attorney documents, because those documents have been revoked. How is it that they retain the authority to make legal decisions for her, such as whether to appeal? They do not have that authority, only the court-appointed guardians do, and the majority‘s conclusion to the contrary is simply wrong. For these reasons, I respectfully dissent.