F. A. W. v. M. B.

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.
November 15, 2022
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. 2021AP1912 Cir. Ct. No. 2020GN214

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE GUARDIANSHIP AND
PROTECTIVE PLACEMENT OF M. B.:

F. A. W.,

PETITIONER-RESPONDENT,

V.

M. B.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, 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. 2021AP1912

¶1 PER CURIAM. Mae1 appeals the circuit court’s finding that she is
incompetent and the resulting order establishing the guardianship of her person
and of her estate under WIS. STAT. ch. 54 (2019-20),2 as well as an order for her
protective placement under WIS. STAT. ch. 55. Mae argues that the circuit court’s
finding of incompetency should be reversed because the court failed to make the
requisite findings of fact under WIS. STAT. § 54.10(3)(a) and because there was
insufficient evidence to support findings under § 54.10(3)(a)2. and 3. Mae also
contends that the court failed to order the least restrictive protective placement.
We reject Mae’s arguments and affirm.

BACKGROUND

¶2 In November 2020, Mae was admitted to a hospital after falling and
hitting her head. At the time, Mae was seventy-five years old, her overall
condition was noted as “poor,” and she was diagnosed with “hypokalemia,
generalized weakness, altered mental status, and alcohol dependence.” Around
this same time, Mae’s husband suffered a stroke. Both he and Mae were later
moved to a skilled nursing home for their respective care.

¶3 In December 2020, Mae’s brother-in-law, Frank, petitioned for, and
was granted, a temporary guardianship of Mae based on a “reasonable likelihood”
that she was incompetent. Shortly thereafter, Frank also petitioned for permanent
guardianship of Mae’s person and her estate and for protective placement of Mae.

1
For ease of reading, we use pseudonyms in this confidential matter when referring to
the parties.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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The circuit court subsequently appointed Dr. Kevin Miller to examine Mae with
respect to her competency and her need for protective placement.

¶4 At an April 2021 hearing, Dr. Miller testified that he had evaluated
Mae in the nursing home and prepared a report detailing his conclusions about her
competency, which were to a reasonable degree of professional certainty. Miller
summarized some of his conclusions regarding Mae’s impairments, testifying that
Mae had severely impaired memory, reasoning and executive functioning. He
further noted that Mae had mild impairments with respect to her language and
communication as well as her attention and concentration. Miller found, however,
that Mae’s orientation to time and location was still intact.

¶5 Doctor Miller elaborated on some of these conclusions. He
described how Mae could not recall, after a thirty-minute delay, nearly any of the
“story elements” from a formal memory test. Mae also could not recall who
Miller was at the end of the evaluation, despite Miller introducing himself at the
beginning of the evaluation and reminding Mae that they had met “a number of
times at least ten years ago.” In addition, Miller testified that Mae “was not able
to do any [hypothetical] calculations” involving simple monetary transactions,
which was “a significant decline from her previous functioning.” Miller
acknowledged that Mae was still a “gifted communicator and socially adept,” but
he recognized that Mae’s ability to communicate “mask[ed] some of her deficits.”

¶6 As a result of the evaluation, Dr. Miller formally diagnosed Mae
with a “[m]ajor neuro-cognitive disorder due to dementia from alcohol use
disorder,” which Miller believed was a permanent condition. Miller opined that
Mae’s condition was the result of her “drinking herself almost to death basically
and falling repeatedly.” Miller recommended that the circuit court order

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protective placement for Mae where she could have twenty-four-hour supervision
in a secure setting. Miller conceded, however, that the nursing home in which
Mae currently resided was not the least restrictive environment for her and that the
least restrictive environment would be in a community-based residential facility
(CBRF).

¶7 Lisa Moreland, a case manager with the Adult Protective Services
unit in the Brown County Health and Human Services Department, also testified at
the hearing. Moreland stated that she prepared a comprehensive evaluation of
Mae, which involved reviewing Mae’s medical records, speaking to Mae,
speaking to a social worker, and speaking to Frank. Based on her evaluation,
Moreland agreed with Dr. Miller that Mae appears to “meet the criteria for a
guardian of person and estate.” She also agreed that protective placement was
appropriate. Moreland said that Mae needed twenty-four-hour supervision to
monitor her alcohol consumption, her potential falls, and her nutrition.

¶8 Moreland acknowledged that a nursing home was not the least
restrictive environment for Mae, but Moreland rejected the proposition that Mae
could return home. Moreland recognized that the cost of twenty-four-hour care at
home—which would be needed to keep Mae safe—would be “astronomically
high.” Moreland testified that Mae and her husband likely had less than $365,000
in their bank account and that it would cost approximately $15,000 to $20,000 per
month for Mae to live at home, which did not account for Mae’s husband’s care or
for the necessary modifications to the home. Moreland also noted that using
protective services was not a feasible plan because Mae could refuse to allow
those services into her home.

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¶9 Mae also testified at the hearing. She stated that she wanted to live
“in [her] home” and that she would be willing to accept “some” in-home services.
She further stated, however, that around-the-clock care was not necessary because
a care worker would have to use the bedroom on the first floor of the home, which
Mae wanted her husband to use. Mae estimated that she received about $445 in
social security per month. On cross-examination, Mae said that the ability to
“enjoy [a] daily cocktail” was not a motivating factor for her request to live at
home.

¶10 Following the witnesses’ testimony, Mae’s guardian ad litem (GAL)
recommended that Frank be appointed guardian of Mae’s person and estate. The
GAL rejected the idea of Mae returning home and recommended protective
placement in a “CBRF type facility.”

¶11 The circuit court subsequently granted the petition for guardianship,
and it appointed Frank as guardian of Mae’s person and estate. The court
explained:

I do find that the statutory criteria for guardian of the
person and of the estate have been met. I find that based
upon the doctor’s report from Dr. Miller, his testimony and
the testimony that was provided to me here today.

I looked at the comprehensive evaluation of Ms. Moreland
as well. And I think that was very informative as to what
this case is all about.

¶12 The circuit court also granted the petition for protective placement.
It found, based upon Dr. Miller’s report and testimony, “that the statutory criteria
for the protective placement have been met.” The court additionally found that
Mae had “a primary need for residential care and custody and that she is
incapacitated as the doctor’s report indicates.” The court determined that Mae’s

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protective placement “should be at a CBRF or assisted living facility” with
twenty-four-hour supervision. Although the court acknowledged Mae’s desire to
live at home, the court recognized that the home was not currently a suitable
environment because it was not modified to meet Mae’s needs.

¶13 After the hearing, the circuit court issued written orders granting the
petitions for guardianship and protective placement. Mae now appeals.
Additional facts will be provided as necessary below.

DISCUSSION

¶14 We employ a mixed standard of review to a circuit court’s decisions
to order guardianship and protective placement. We will not overturn a circuit
court’s factual findings unless they are clearly erroneous. WIS. STAT. § 805.17(2);
see also Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998).
Whether the evidence satisfies the relevant legal standards, however, is a question
of law that we review de novo. Coston, 222 Wis. 2d at 22.

I. The circuit court’s findings under WIS. STAT. § 54.10(3)(a)

¶15 A circuit court may establish the guardianship of an individual’s
person and estate if the court finds that the individual is incompetent under WIS.
STAT. § 54.10(3)(a). Section 54.10(3)(a) provides that a court can find an
individual incompetent “only if the court finds by clear and convincing evidence
that all of the following are true:”

1. The individual is aged at least 17 years and 9 months.

2. For purposes of appointment of a guardian of the person,
because of an impairment, the individual is unable
effectively to receive and evaluate information or to make
or communicate decisions to such an extent that the

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individual is unable to meet the essential requirements for
his or her physical health and safety.

3. For purposes of appointment of a guardian of the estate,
because of an impairment, the individual is unable
effectively to receive and evaluate information or to make
or communicate decisions related to management of his or
her property or financial affairs, to the extent that any of the
following applies:

a. The individual has property that will be dissipated in
whole or in part.

b. The individual is unable to provide for his or her support.

c. The individual is unable to prevent financial exploitation.

4. 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, a supported decision-making agreement under
[WIS. STAT.] ch. 52, or other means that the individual will
accept.

¶16 Mae argues that the circuit court’s finding of incompetency must be
reversed because the court failed to make specific findings of fact with respect to
each element set forth in WIS. STAT. § 54.10(3)(a). According to Mae,
§ 54.10(3)(a) expressly requires separate findings as to each element in the statute
before a court can find that an individual is incompetent. Mae therefore contends
that the court violated § 54.10(3)(a) by not discussing each of the required findings
in its oral decision but by stating simply: “[T]he statutory criteria for guardian of
the person and of the estate have been met.”

¶17 We agree with Mae’s general proposition that a circuit court is
required to make specific findings of fact with respect to each element set forth in
WIS. STAT. § 54.10(3)(a). As expressly provided in § 54.10(3)(a), a court may
find that an individual is incompetent for purposes of guardianship “only if the

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court finds by clear and convincing evidence that all of the [subdivisions in
§ 54.10(3)(a)] are true.” See id. (emphasis added). Put differently, the
subdivisions in § 54.10(3)(a) are the ultimate facts needed to find a person
incompetent for purposes of guardianship. See Ultimate fact, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“A fact essential to the claim or the defense.”).
Significantly, in all matters tried without a jury, a court

shall find the ultimate facts and state separately its
conclusions of law thereon. The court shall either file its
findings and conclusions prior to or concurrent with
rendering judgment, state them orally on the record
following the close of evidence or set them forth in an
opinion or memorandum of decision filed by the court.

WIS. STAT. § 805.17(2). By making the specific findings of fact set forth in
§ 54.10(3)(a), the court protects the rights of the litigants and facilitates review of
the record by an appellate court. See Hochgurtel v. San Felippo, 78 Wis. 2d 70,
85, 253 N.W.2d 526 (1977).

¶18 Although a circuit court must make specific findings of fact with
respect to each element set forth in WIS. STAT. § 54.10(3)(a), we reject Mae’s
contention that the court failed to make the requisite findings in this case. After
the evidentiary hearing, the court filed a “Determination and Order” using a
standard court form: Form GN-3170 (Nov. 2020). This form order, which Mae
fails to address in her argument, contains the court’s written findings of fact with
language that mirrored each of the elements in § 54.10(3)(a). The completed form
reflects that the court specifically found each of the ultimate facts set forth in
§ 54.10(3)(a). These findings are therefore minimally sufficient. See WIS. STAT.
§ 805.17(2) (“If an opinion or memorandum of decision is filed, it will be
sufficient if the findings of ultimate fact and conclusions of law appear therein.”).

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¶19 We recognize that the circuit court made the minimum findings of
fact required by law, but we suggest that a better practice is for circuit courts to
state more detailed findings of fact on the record. Although we ultimately affirm
the court’s orders, for reasons discussed further below, we caution that courts
would be best advised to make more detailed findings of fact to further facilitate
our review and—most importantly—to safeguard a litigant’s rights.

II. The sufficiency of evidence to support the circuit court’s findings

¶20 Mae argues that even if the circuit court made the requisite findings
of fact, there is insufficient evidence to support a finding that she is incompetent.
In particular, Mae challenges the sufficiency of evidence with respect to WIS.
STAT. § 54.10(3)(a)2. and 3.3

¶21 Mae has failed to show, however, that the circuit court’s findings
under WIS. STAT. § 54.10(3)(a)2. and 3. are clearly erroneous. A circuit court’s
findings of fact are not clearly erroneous unless they are against the great weight
and clear preponderance of the evidence, even if the evidence may have presented
competing factual inferences. State v. Wiskerchen, 2019 WI 1, ¶30, 385 Wis. 2d
120, 921 N.W.2d 730. We will affirm a court’s findings of fact as long as the
evidence would permit a reasonable person to make the same finding. Id. “We

3
Although we do not discern Mae to be arguing that the evidence was insufficient to
support a finding under WIS. STAT. § 54.10(3)(a)4., we nevertheless note that sufficient evidence
supported such a finding. Doctor Miller opined in his report that less restrictive interventions—
such as training, education, support services, assistive devices, advanced planning, or a
representative payee—would not eliminate Mae’s need for guardianship because “[h]er deficits
were too severe.” Miller also testified at the evidentiary hearing that Mae’s condition was
permanent.

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search the record not for evidence opposing the circuit court’s decision, but for
evidence supporting it.” Id.

¶22 The record contains sufficient evidence to support the circuit court’s
finding that, because of her impairment, Mae “is unable effectively to receive and
evaluate information or to make or communicate decisions to such an extent that
[she] is unable to meet the essential requirements for … her physical health and
safety.”4 See WIS. STAT. § 54.10(3)(a)2. Doctor Miller testified that Mae’s
condition at the time of her hospitalization was the result of “drinking herself
almost to death basically and falling repeatedly,” notions which Mae “adamantly
rejected.” Miller also noted that Mae could not recall why she was at the facility
even though Miller and Mae had discussed the events in “some detail” an hour
earlier in the evaluation. Miller stated that Mae “would drink herself to death and
be malnourished unless she were supervised around the clock 24/7.”

¶23 In addition, Dr. Miller’s report, which was introduced as an exhibit
at the evidentiary hearing, reflected that Mae did not know what medications were
prescribed to her, she disagreed that she had any impairments, and “she insisted
she could live on her own in her home with no assistance.” The report also
contains Miller’s conclusion that Mae’s incapacity would interfere with her ability
to meet the essential requirements of her health and safety. Miller testified at the
evidentiary hearing that the conclusions in his report were to a reasonable degree
of professional certainty.

4
“‘Meet the essential requirements for physical health or safety’ means perform those
actions necessary to provide the health care, food, shelter, clothes, personal hygiene, and other
care without which serious physical injury or illness will likely occur.” WIS. STAT. § 54.01(19).

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¶24 Moreland reiterated and agreed with many of Dr. Miller’s
observations. She testified that Mae’s alcohol consumption, her recurrent falls,
and her malnutrition all contributed to her hospitalization. Moreland also
expressed concern about Mae’s judgment concerning medication, noting that Mae
could not explain why she was prescribed certain medications but nonetheless
believed she did not need those medications.

¶25 Sufficient evidence also supported the circuit court’s determination
that, because of her impairment, Mae “is unable effectively to receive and evaluate
information or to make or communicate decisions related to management of … her
property or financial affairs, to the extent that” Mae has property that will be
dissipated in whole or in part, is unable to provide for her support, or is unable to
prevent financial exploitation. See WIS. STAT. § 54.10(3)(a)3. Moreland testified
that Mae had some financial resources, including social security and a recent
inheritance of about $365,000—although some of the inheritance had already been
used to pay for nursing home care.

¶26 Doctor Miller also testified that, during the evaluation, Mae
“couldn’t even begin to calculate” how much change she should receive if she had
$20 and spent $8.50. His report also noted that Mae could not “calculate rent for a
year if she knew the monthly total ($300).” Miller concluded in his report that
Mae’s incapacity would interfere with her ability to manage her property and
financial affairs, to address a risk of her property being dissipated in whole or in
part, to provide for her own support, and to prevent financial exploitation. Again,
Miller testified at the evidentiary hearing that these conclusions were to a
reasonable degree of professional certainty.

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¶27 Mae’s argument with respect to the sufficiency of evidence is largely
centered on her ability to communicate, which Dr. Miller found to be only mildly
impaired. Mae points out that she is “a gifted communicator and socially adept”
and that she “clearly and rationally” communicated “her desire to go home” at the
hearing.

¶28 Be that as it may, Mae’s ability to communicate, by itself, does not
show the circuit court’s findings of fact are clearly erroneous. An individual’s
inability to effectively communicate, because of his or her impairment, is one
potential basis for a court to find that WIS. STAT. § 54.10(3)(a)2. and 3. have been
satisfied, but a court can also base its findings on an individual’s inability to
effectively receive and evaluate information or to effectively make decisions. See
§ 54.10(3)(a)2. and 3. (“[B]ecause of an impairment, the individual is unable
effectively to receive and evaluate information or to make or communicate
decisions ….” (emphasis added)). In other words, a court’s findings under
§ 54.10(3)(a)2. and 3. could be supported by sufficient evidence even if it were
undisputed that the individual had strong communication skills. Here, the
evidence largely focused on how Mae’s severely impaired “memory,” “reasoning”
and “executive functioning” interfered with her ability to effectively receive and
evaluate information and to effectively make decisions. Accordingly, even if the
court credited testimony that Mae had strong communication skills, sufficient
evidence still supported the court’s findings under § 54.10(3)(a)2. and 3.

¶29 In sum, there was sufficient evidence to support the circuit court’s
findings under WIS. STAT. § 54.10(3)(a)2. and 3. The evidence permitted a
finding that, due to her impairment, Mae would be unable to meet the essential
requirements for her physical health and safety because she could not effectively
receive and evaluate information or effectively make decisions. See

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§ 54.10(3)(a)2. The evidence also permitted a finding that Mae could not, because
of her impairment, effectively receive and evaluate information or effectively
make decisions related to the management of her property or financial affairs, to
the extent that Mae has property that will be dissipated in whole or in part, is
unable to provide for her support, or is unable to prevent financial exploitation.5
See § 54.10(3)(a)3.

III. The circuit court’s finding of the least restrictive protective placement

¶30 Mae next argues that the circuit court “failed to order the least
restrictive manner of placement consistent with [her] needs.” She contends that
she should be “permitted to choose between” in-home care and a residential
facility.

¶31 Mae’s arguments largely ignore our standard of review. If a court
orders protective placement—as the circuit court did in this case—the placement
“shall be provided in the least restrictive environment and in the least restrictive
manner consistent with the needs of the individual to be protected and with the
resources of the county department.” See WIS. STAT. § 55.12(3); see also WIS.
STAT. § 54.01(18) (defining “least restrictive”). Whether a protective placement is
in the least restrictive environment and is in the least restrictive manner are
questions of fact, which we review under the clearly erroneous standard. See

5
Mae argues that if the circuit court failed to find her incompetent or if the evidence did
not support the incompetency finding, then the protective placement order must be reversed. See
WIS. STAT. § 55.08(1)(b) (requiring an adult individual to have been determined incompetent by a
circuit court before a court can order protective placement). For the reasons explained earlier,
however, the court made the requisite findings of fact under WIS. STAT. § 54.10(3)(a) and those
findings were supported by sufficient evidence. Therefore, the protective placement order cannot
be reversed under § 55.08(1)(b). Mae does not challenge any of the court’s other findings of fact
under § 55.08(1).

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Fond du Lac County 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”).

¶32 Here, the circuit court found that the least restrictive protective
placement for Mae would be in a secure setting, at either a CBRF or an assisted
living facility, with twenty-four-hour supervision and monitored egress. The court
also expressly rejected the alternative idea of Mae returning home. The court’s
protective placement order subsequently directed that Mae “should be relocated
[from the nursing home] to a CBRF when an appropriate facility willing to accept
[Mae] is identified and arrangements can reasonably be made for an orderly
transfer.”6

¶33 The evidence in the record would permit a reasonable person to
make these same findings. See Wiskerchen, 385 Wis. 2d 120, ¶30. Both
Dr. Miller and Moreland recommended that Mae be transferred to a CBRF as soon
as possible and that she be under twenty-four-hour supervision. They also
testified that such a placement would be the least restrictive environment for Mae.
In addition, Moreland outright rejected the notion that Mae could return home.
She testified that returning home was not economically feasible because: (1) Mae
and her husband likely had less than $365,000 in their bank account;
(2) twenty-four-hour supervision at home would cost an estimated $15,000 to
$20,000 per month; (3) modifying the home to make it safe would further deplete

6
Although Mae appears to suggest that the protective placement order improperly kept
her in the nursing home until arrangements could be made for a CBRF, she does not develop any
argument or cite any legal authority in support of that notion. Therefore, we need not address the
issue. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need
not address an argument that is undeveloped and unsupported by legal authority).

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their assets; and (4) Mae’s husband also needed significant care which would
impose additional expenses.

¶34 Mae challenges Moreland’s testimony by arguing that her care
would be “extremely expensive” at either her home or a residential facility. She
also argues that her husband’s placement was not relevant to the circuit court’s
determination of the least restrictive environment for her.

¶35 Both of these arguments, however, are misplaced. Mae does not
identify any evidence in the record to support her argument that care in a CBRF
would cost equal to or more than the estimated $15,000 to $20,000 per month for
her to have in-home care with twenty-four-hour supervision. Mae also fails to
recognize that Moreland’s testimony regarding Mae’s husband largely focused on
the cost of care for both Mae and her husband. Moreland testified that the
estimated cost of in-home care for Mae does “not tak[e] into account [Mae’s
husband’s] need for care, whether it’s at home or in another facility. That will
also be an expense that [affects their assets].” Thus, Moreland’s testimony
regarding Mae’s husband was relevant because Mae’s husband’s care would
ultimately affect Mae’s ability to afford in-home care with twenty-four-hour
supervision.

¶36 Mae also asserts that both Dr. Miller and Moreland “agreed that
[Mae] could go home with protective services.” We, however, cannot find any
support for this assertion in the record. In addition to Moreland’s concerns about
the economic feasibility of Mae returning home, Moreland also explained that
using protective services was “not a feasible plan” because Mae could refuse to
allow those services into her home. Although Miller testified that it would be
“theoretically possible” for Mae to return home if she had sufficient assets to pay

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for modifications to her home and for twenty-four-hour supervision, Miller
acknowledged that he did not know the specific details of Mae’s financial
situation. Thus, the circuit court could reasonably credit Moreland’s testimony
that using protective services in Mae’s home was not a viable option.

¶37 In short, the circuit court’s finding of the least restrictive protective
placement for Mae was not clearly erroneous.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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